Karleen Murphy v Kennards Self Storage

[2021] FWC 4553

[2021] FWC 4553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karleen Murphy
v
Kennards Self Storage
(U2021/4367)

COMMISSIONER SIMPSON BRISBANE, 28 JULY 2021

Application for unfair dismissal –application lodged out of time –whether an extension of time should be granted

[1] On 20 May 2021, Ms Karleen Murphy filed an application for unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (the Act) alleging her employment with Kennards Self Storage (the Respondent) was terminated unfairly.

[2] Part 1.4 of the Form F2 application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Ms Murphy answered on the Form F2 “Yes”.

[3] On 1 June 2021, the Respondent lodged a Form F3 – Employer response to unfair dismissal application and objected to the application on the basis it was made outside the time required in s.394(3) of the Act and that the termination of Ms Murphy’s employment was by way of genuine redundancy.

[4] The matter was allocated to me to determine whether an extension of time should be granted to Ms Murphy to file her unfair dismissal application. I issued directions for the filing of material and the matter was listed for Hearing by telephone on 14 July 2021.

LEGISLATION

[5] Section 394 of the Act provides:

(2) 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 (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[6] The Applicant indicated in her Form F2 application that she had not been notified officially of her employment ending, and her position was just advertised as available. The Applicant said she had been on maternity leave expecting to return to her permanent part time position as Assistant Manager.

[7] The Applicant claimed that at the end of her parental leave the Respondent tried to send her a minimum of 1.5hrs one way to a different location. The Applicant said the Respondent was aware of her personal circumstances including a domestic violence situation and had known since January 2020.

[8] The Applicant said the dismissal was unfair because she was not given a proper chance to return to work, and the Respondent advertised her position without notifying her the position was available.

[9] In its initial Form F3 filed on 1 June 2021 the Respondent submitted that the Applicant was not dismissed. The Respondent said the Applicant’s decision not to accept the position offered to her at a different location was formally noted in an email sent to her by the Respondent on 2 March 2021. The Respondent objected on the ground that the Applicant was not dismissed and also on the ground that the application was out of time. The Respondent referred to the final paragraph of the email sent to the Applicant on 2 March which read as follows:

“We will accordingly record your final date of employment as today. We welcome you to apply for any future roles we have available in the future with a more suitable location for you”.

[10] The Respondent said the email made it expressly clear the Applicant’s employment with the Respondent ended on 2 March 2021. The Applicant’s application was filed with the Fair Work Commission (the Commission) on 20 May 2021. The Respondent submitted that this meant the application was filed by the Applicant 58 days after the 21 days statutory deadline.

[11] On 5 June 2021 the Applicant filed an email with some attachments. The email submission indicated the Respondent knew where the Applicant’s child attended school, and where her mother lived. The Applicant said she wasn't aware of being dismissed until she saw her job advertised on Seek. The Applicant said if the Respondent had any concern or wasn't sure of something, the Respondent’s representative had her phone number and should've called. The Applicant said the Respondent was also aware of where her ex-partner lived.

[12] The Applicant said it was originally the Respondent’s suggestion to extend the Applicant’s leave for another 12 months making it a 24-month maternity leave and at this time a discussion occurred about the Applicant’s personal circumstances.

[13] The Applicant said she did not check emails often and the Respondent was also aware of that. The Applicant said the Respondent had her phone number and had called and texted her phone number previously if needing an answer back to an email or if needing to ask something. The Applicant said she assumed the Respondent would have called or messaged her. The Applicant said she never resigned, and never received a separation certificate. The Applicant said she was unaware of the email of 2 March.

[14] The matter was allocated to me and directions were issued for the filing of further submissions and a hearing to be conducted on 14 July 2021.

[15] On 6 July the Applicant filed an email in the form of a statement with a range of attached documents. In the statement the Applicant said she was unaware that her employment had been terminated because she had not received any notification, a separation certificate, text message, phone call or any paperwork to indicate that she was no longer employed.

[16] On 12 July the Respondent filed a statement from Ms Nichola Goodwin, Operations Manager based in New South Wales, and also written submissions. Ms Goodwin said she started employment with the Respondent on 23 October 2016 and is responsible for all of the Respondent’s facilities in Queensland.

Commencement of Parental Leave

[17] The Applicant said her parental leave took place on 2 February 2019, and she had booked for six months with the option to extend. The Applicant said before the six months was up, on 3 June 2019 she emailed giving plenty notice that she would take the option to extend a further six months, making it 12 months’ maternity leave with an expected return in February 2020.

[18] Ms Goodwin said she was the manager responsible for approving the Applicant’s parental leave in February 2019. There was no dispute about the facts surrounding the initial extension of the period of parental leave.

Further 12-month extension of Parental Leave

[19] The Applicant described in her statement the personal circumstances that had evolved requiring her to relocate her address. The Applicant said an alternative work location was discussed with Ms Goodwin as a return-to-work option at the end of her initial 12 months of parental leave. The Applicant said Ms Goodwin let her know that she was also entitled to a further 12 months if she would like to have another 12 months maternity leave.

[20] The Applicant said over the phone, Ms Goodwin asked her to email through a request for a further 12 months but asked her to take a couple of days to think about it.
The Applicant said she sent through the request on 15 January 2020. The Applicant said two weeks later on 28 January 2020, Ms Goodwin emailed through acceptance of extending parental leave a further 12 months.

[21] Ms Goodwin said during a conversation in January 2020 about her return to work, the Applicant told her about her personal difficulties involving domestic violence having forced her to move home. Ms Goodwin said she was saddened by the situation and told the Applicant that she was entitled to request a further 12 months’ parental leave.

[22] Ms Goodwin said Ms Murphy later made the request and Ms Goodwin approved it, however during the consultation and approval process Ms Goodwin said it was made expressly clear to the Applicant that the Respondent could not guarantee the Applicant would be able to return to the same facility if her extension was approved and this was clearly set out in correspondence of 28 January 2020. Ms Goodwin said nonetheless the Applicant accepted the proviso and took the further 12 months’ parental leave.

[23] The Applicant acknowledged that this correspondence stated that she may not return back to the same centre however due to their recent phone call and the mention of going to another centre during their phone call, the Applicant said she was not worried about her centre posting with her 2021 return.

January 2021

[24] The Applicant said there was no further communication with Ms Goodwin until 2021, when on 12 January 2021 via text message Ms Goodwin said as follows:

“Hi Karly Hope your [sic] going well and had a nice Christmas Just wanted to confirm you still have the same email address. [email address redacted] I sent you an email last week not sure if you got it. Trust all is going well.

Nicky”

[25] Ms Murphy said she replied with:

“Hi Nicky,

Thank you, I Hope you and your family did also.

I do now have the same email but rarely check it. [Applicant’s emphasis added] I’ll go check it now for you and get back to you.”

[26] Ms Murphy said Ms Goodwin responded via text as follows:

“Ok thanks

Take care

Nicky”

[27] The Applicant said she replied via text message as follows:

“Hi Nicky,

Have seen and responded.

Karly.”

[28] The Applicant said emails were exchanged between Ms Goodwin and herself.
The Applicant said because most of the previous communication between Ms Goodwin and herself was via phone call or text message, she had assumed that if there was any grey areas, and the fact Ms Goodwin was aware she didn’t often check emails, that if anything needed clearing up, the Applicant would've received at the very least, a phone call or at minimum an email to notify her to check emails as she had done previously.

[29] The Applicant said during the email exchange it was made clear that the only position that she was offered was too far away (taking into account dropping off/picking up children from day care and before/after school care). The Applicant said Ms Goodwin made it impossible for her to return to her job and in turn made it impossible for her to accept.

[30] Ms Goodwin said she began communicating with the Applicant again in early 2021 about her proposed return to work when her extended parental leave ended on 20 February 2021.

[31] Ms Goodwin said she first attempted to contact the Applicant on 7 January 2021 via an email address that the Applicant confirmed in the course of the hearing was an email address she used. Ms Goodwin said the Applicant did not reply so Ms Goodwin sent her a text on 12 January 2021 and the Applicant replied to this text saying she did not check her emails regularly. Ms Goodwin said however all subsequent communications with the Applicant were via the email address.

[32] Ms Goodwin said she used the email address because she knew from her conversations with the Applicant about her personal circumstances that she had moved address. Ms Goodwin said during the year before the Applicant had gone on parental leave, the Applicant had been asked to be transferred to different work locations based on her address at that time.

[33] Ms Goodwin said further the Applicant had never provided her with a new postal address after moving to a new house during parental leave, so it was not possible to send physical mail. Ms Goodwin said in her experience contacting the Applicant by email was the most reliable way to reach her.

[34] Ms Goodwin gave evidence concerning the email communications exchange with the Applicant between 7 January 2021 ending on 2 March 2021. It is clear from the communications that the Applicant’s former position at the time she commenced parental leave in 2019 was not available, and instead the Applicant was offered another position at a different facility.

[35] Ms Goodwin said the Applicant angrily rejected the offer on the basis that she said it was too far to travel. Ms Goodwin said as the return-to-work communications continued it became clear to her that the Applicant would not accept the only vacancy available at that time. Ms Goodwin said she repeatedly asked the Applicant to clarify and confirm her intentions about returning to work because the vacancy had to be filled and the Applicant’s parental leave was almost at an end.

[36] Ms Goodwin said the Applicant sent her last email on 1 March 2021 claiming that the Respondent had made her position redundant. Ms Goodwin said this was not true because the Applicant had agreed to the parental Leave extension on the understanding that the Applicant would be offered an assistant manager role somewhere in Ms Goodwin’s area but not necessarily at the same site. Ms Goodwin said in the email of 1 March 2021 the Applicant accused her of bullying which she said was distressing and untrue.

[37] The Applicant said given their previous communication where it was stated a different position would also be a good position, the Applicant was under the impression she was waiting for a better suited position closer to her home. The Applicant said she did not see Ms Goodwin’s final email saying the Applicant’s employment ended on the 2 March until weeks later. The Applicant said it is not uncommon for her to miss emails as she doesn’t check her email very often. The Applicant said she had also told Ms Goodwin that during their text message exchange.

[38] Ms Goodwin said she replied to the Applicant’s email on 1 March 2021 the next day on 2 March 2021 and tried to be as conciliatory as she could the email ended as follows:

“Unfortunately at this stage we do not have any other offers of location we can present to you. Taking your decision into account that [redacted] is not a suitable location for you.

We will accordingly record your final date of employment as today. We welcome you to apply for any future roles we may have available in the future with a more suitable location for you.

All of us at Kennards wish you the very best with your future endeavours.”

12 May 2021

[39] In her evidence the Applicant claimed she only become aware of having no job and of her old job becoming available when she saw it on the Seek and Kennards website on 12th of May. The Applicant said she sent a text to Ms Goodwin the same day with screenshots of the advertised position, however she never heard anything back. The Applicant said she also applied for the job via the Seek website however never heard anything back. The Applicant said the advertising of the assistant manager role was listed on approximately 21 April 2021.

[40] The Applicant said that within a few days of realising her job was advertised and that she had no job to return to, that she filed the unfair dismissal application.

[41] Ms Goodwin said following the email of 2 March she did not hear again from the Applicant until more than two months later on 12 May 2021 when the Applicant sent her a text message containing a screenshot of the online job advertisement Ms Goodwin had placed for a new vacancy at the store where the Applicant had formerly worked.

[42] Ms Goodwin said the vacancy only arose on 21 April 2021 which was almost two and a half months after the Applicant’s employment had already ended. Ms Goodwin explained that the vacancy came about because the full time manager unexpectedly resigned and his former part time assistant manager then applied for promotion into the position and was appointed on 21 April, meaning that position would need to be backfilled.

Consideration

[43] The Respondent submitted that the 12-month extension of the Applicant’s parental leave was subject to the express and mutually-agreed proviso that a position may not be available for the Applicant at the same facility upon her subsequent return to work. This claim is supported by the evidence and the Applicant did not submit otherwise. What the Applicant was aggrieved about was that as the additional 12-month extension came near to its conclusion the nearest available position offered by the Respondent was not acceptable from the Applicant’s perspective.

[44] This is not a case where the Respondent has failed to consult the Applicant and attempted to impose a unilateral condition on the return to work after an agreed additional 12-month extension. The Applicant was consulted about whether she would agree to returning at a different location as the basis for the Respondent agreeing to a further 12 month extension, and the Applicant confirmed that was acceptable to her.

[45] A significant issue from the Applicant’s perspective was that fact of the part time position that had been filed by the Applicant prior to her taking her initial period of parental leave becoming vacant and being advertised in the months following the communication of 2 March that her employment was ending. The Applicant queried why the role was not offered to her at that time. The evidence disclosed that the position first became available again on 21 April 2021, and for reasons that will be discussed below, this is a considerable period after the employment ended. For this reason the issue has not been afforded significant weight in determining whether there are exceptional circumstances in this case.

Reason for delay and when Applicant First Became Aware of Dismissal

[46] The Applicant’s case for why the application was not filed until 20 May appears from the evidence to be that she believed she was still employed by the Respondent and waiting for a suitable position, and this remained her view until seeing the job advertisement on 12 May.

[47] The evidence indicates the majority of communications between Ms Goodwin and the Applicant were via the Applicant’s email address, and this includes the period of seven weeks leading up to 2 March 2021. As was submitted for the Respondent, these communications evidence a disagreement between the Applicant and Respondent regarding the vacant position the Applicant had been offered by the Respondent at a different facility.

[48] The Applicant did not send any other correspondence to the Respondent until she sent a text message to Ms Goodwin on 12 May 2021 stating she had seen a vacant position advertised at the Respondent’s facility where the Applicant had worked.

[49] The Full Bench’s decision in Ayub v NSW Trains 1 (Ayud) states that an employee does not need to actually open and/or read written correspondence sent by their employer in order for communication ending their employment to have been “received” by them and to be “effective”. The Full Bench said as follows:

“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.” (underlining added)

[50] The evidence is that the email of 2 March to the Applicant was a clear communication of termination of her employment, sent to her email address which she had been accessing for the purpose of other communications with the Respondent in the preceding weeks. The email of 2 March was part of an ongoing exchange between the Applicant and Respondent regarding her continued employment and was sent in reply to an email received from the Applicant the previous day.

[51] There is some inconsistency in the Applicant’s evidence in that she said it was only on 12 May that she realised she was not getting her job back, however also said she did not see the email of 2 March “until weeks later”, meaning weeks after 2 March. The Applicant accepted in her oral evidence that she did receive the email.

[52] The email sent by the Applicant on 1 March expressed a view to the Respondent that the Respondent had made her “employment redundant”. It would be expected the Applicant would have been checking her emails for a response in all of the circumstances.

[53] On the basis of the evidence, I am not inclined on balance to accept the Applicant’s claim that she did not read the email of 2 March until 12 May given the Applicant was responding to other emails in the weeks prior, and there is some inconsistency in her evidence as to when she said she first read it. On the one hand her evidence was she did not see the email until weeks later, however by then claiming she did not see it until 12 May means she did not see it until over two months later. There is some evidence to support the drawing of an inference that it was on seeing the advertisement on Seek and the Kennards website for a part time position she had formerly occupied, that the Applicant decided to file this unfair dismissal application, and not as claimed that this was when she first became aware of her dismissal.

[54] Even if my rejection of the claim that the Applicant did not read the email of 2 March 2021 until 12 May is wrong, nonetheless the Applicant had a “reasonable opportunity” to read the email and therefore apprehend her employment ended on 2 March 2021.

[55] As was submitted for the Respondent the decision in Ayud 2 concluded that an employee does not need to actually open and/or read written correspondence sent by their employer in order for the communication ending the employment to be received by them for it to be effective. The Full Bench said as follows in that matter:

“[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the ElectronicTransactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”

[56] I am satisfied in this case the Applicant had a “reasonable opportunity to become aware” of the conclusion of her employment on 2 March 2021 when she received the Respondent’s email confirming that it would “…record your final date of employment as today”.

[57] I am satisfied that the employment was ended at the initiative of the Respondent by sending the email of 2 March 2021. On that basis I am satisfied the termination of employment was in effect from this date and that is the date from which the filing of the application should be calculated, making the application 58 days late.

[58] Even on the Applicant’s version of the facts that she only first became aware of her dismissal on 12 May, there is also no evidence to explain the eight day delay from 12 May to 20 May in filing the application.

[59] On the basis of the findings concerning s.394(3)(a) and (b), neither of these considerations favour the extending of time.

Action Taken to Dispute the Dismissal

[60] There is no evidence of the Applicant taking any action to dispute the dismissal prior to the filing of the application on 20 May 2021.

Prejudice to the Employer

[61] In this case it is appropriate to treat s.394(d) as a neutral consideration.

Merits

[62] In this case it is appropriate to treat s.394(e) as a neutral consideration as there are relevant matters of fact that would need to be the subject of evidence before proper conclusions could be drawn.

Fairness as between the person and others in a similar position

[63] There was no evidence relevant to the consideration under s.394(3)(f) and it is a neutral consideration.

Conclusion

[64] Having taken into account each of the matters in section 394(3) I am not satisfied that there are exceptional circumstances in this case warranting an extension of time and on that basis the application is dismissed.

COMMISSIONER

Appearances:

Ms K Murphy appearing on her own behalf.

Mr D Bates of Workforce Engagement Solutions appearing for the Respondent.

Hearing details:

2021,
Brisbane:
July 14

Printed by authority of the Commonwealth Government Printer

<PR732223>

 1   [2016] FWCFB 5500.

 2   Ibid.