Kelly Mackay v North Queensland Imports Pty Ltd
[2024] FWC 2386
•4 SEPTEMBER 2024
| [2024] FWC 2386 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kelly Mackay
v
North Queensland Imports Pty Ltd
(C2024/4998)
| COMMISSIONER SIMPSON | BRISBANE, 4 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – not dismissed - objection dismissed – employment ended on 21 June 2024 at employers initiative – out of time application – extension of time granted – exceptional circumstances.
On 19 July 2024, Ms Kelly Mackay (Ms Mackay/ the Applicant) applied to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter is North Queensland Imports Pty Ltd (the Respondent). The Respondent was initially incorrectly identified but I granted an application to amend the named Respondent exercising power under section 586 of the Act.
The Respondent raised a jurisdictional objection that the Applicant was not dismissed, and instead that the employment ceased at the Applicant’s initiative. In addition, the Respondent argued that the Applicant’s application was made outside of the 21-day statutory time period.
On 13 August 2024, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objections. A jurisdictional hearing was held on 3 September 2024.
The Applicant appeared on her own behalf and Mr Daniel Scott of the Respondent appeared for the company.
Background
The Applicant was an employee of the Respondent since 30 October 2023. She submitted that her employment ended on 28 June 2024. The Respondent submitted that the employment ended on 20 June 2024 when the Applicant left work having ‘cleared out her desk’ and was confirmed on 21 June 2024 when she sought leave from 21 to 28 June 2024 and expressed her intention to not work out her final days of employment.
On 19 June 2024, Mr Scott messaged the Applicant on WhatsApp to confirm she understood that the yard would be closing down and stated he would give her a positive reference to find a new job. The Applicant acknowledged this and asked for a separation letter in writing advising her of the redundancy formally. Mr Scott confirmed he would do so.
At 6:06am on 21 June 2024, the Applicant messaged Mr Scott informing him she needed to take leave from 21 June 2024, returning 1 July 2024:
“To Daniel,
Due to unforeseen circumstances, I need to take time off as personal and domestic paid leave. Effective as of Friday 21/06/2024. I am hoping to be able to return on Monday 01/07/2024. I apologise for the short notice….”
At 6:07am, Mr Scott responded:
“Unfortunately, that is not going to work, Kelly. Today will be your last day…”
The Applicant then stated she would return the keys to the police for Mr Scott to collect.
The Respondent submitted that the Applicant had cleared out her desk in preparation to not return to the workplace. Mr Scott claimed that the Applicant’s desk had personal items, photos and ornaments usually adorning it, but when he attended on the morning of 21 June 2024, all of those items were gone. Mr John Douglas, an old friend of Mr Scott provided an affidavit stating that he had attended the workplace at other times and confirmed having seen the Applicant’s desk decorated, and it was bare of personal items at approximately 8:00am on 21 June 2024.
The Applicant’s evidence was that she had tidied up her desk at the start of the week, and had not cleared out her desk as the Respondent was contending. Her evidence was that she did not display pictures of her child or have ornaments on her desk. She stated that she had family members visit her at her workplace who could attest to this, including her father Mr Warren Hart who submitted an affidavit to this effect. She submitted that she did intend to come back to work and still had personal items left at the workplace.
The Respondent objected to Mr Hart’s evidence as Mr Scott submitted that he had never seen Mr Hart at his premises.
Between 21 and 26 June 2024, the Applicant was in communication with Ms Shan Delany, Accountant of Delany Tax and Bookkeeping regarding evidence to support her needing the personal leave. On this basis, the Applicant believed she was still employed on these dates.
On 28 June 2024, the Applicant said she received a separation certificate which stated that her employment ended on 28 June 2024. Mr Scott’s name appeared on the certificate, though he said he did not sign it and it appears to have been prepared by Ms Delany. The Applicant, in making her application relied on this separation certificate provided to her by the Respondent as the basis for when her employment ended.
Evidence and Submissions
The Applicant submitted that she had not resigned but had been dismissed by the Respondent by WhatsApp message on 21 June 2024 and her employment ended on 28 June 2024 as evidenced by the separation certificate and payout of remaining unpaid leave entitlements on that date.
The Respondent submitted that the Applicant had been made redundant and informed her final day of work would be 30 June 2024. However, that she then ended her own employment early by taking leave from 21 June 2024 up until 30 June 2024. Mr Scott submitted that therefore she had ended the employment at her own initiative.
Relevant Legislation
The Applicant alleges she was dismissed within the meaning of section 386(1)(a). Section 386 reads as follows:
“386 Meaning of dismissed
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.”
Consideration
Not dismissed
The Respondent’s case is that the Applicant brought the employment relationship to an end at her own initiative by the act of clearing out her desk at the conclusion of her last shift on the afternoon of Thursday 20 June 2024. Mr Scott’s evidence was he did not actually see the Applicant clear out her desk as he finished earlier that day on 20 June 2024. The Applicant has squarely rejected the allegation that she cleared out her desk on the afternoon of 20 June 2024 and claimed Mr Scott had invented the allegation.
I am inclined to the view that the Applicant is likely to have begun clearing her own property from the workplace, as the evidence supports the conclusion that the Applicant was made aware Mr Scott was preparing to close the business. However, that does not amount to a voluntary resignation. Mr Scott does not claim that the Applicant ever told him that she intended to resign. It is clear the Applicant did not either orally or in writing indicate an intention to resign. Even if the Applicant did remove her own property from the workplace, that does not amount to a resignation.
It is not contested that the Applicant sent a message to Mr Scott at 6:06am on the Friday morning of 21 June 2024 requesting paid leave with effect from that day to Friday 28 June 2024 inclusive. There was documentation provided in the evidence by the Applicant providing some background to the reasons for the request. It is unnecessary for me to go into that material in any detail except to say that it tends to support the conclusion that the Applicant had a bona fide reason for the request.
One minute later at 6:07am, Mr Scott responded: “Unfortunately, that is not going to work, Kelly. Today will be your last day…”
On the basis of the evidence, I am satisfied that the Applicant did not voluntarily resign from her employment on 20 June 2024 and instead that the employment relationship was brought to an end at the initiative of the Respondent by the message sent to the Applicant on 6:07am on 21 June 2024. The Applicant was not paid any notice pay, and the Respondent subsequently paid the Applicant’s remaining accrued leave out on 28 June 2024.
On that basis, despite what the Employment Separation Certificate said, the employment relationship came to an end on 21 June 2024 meaning the application was filed out of time, as the last day the application could have been filed within time was 12 July 2024. As the application was filed on 19 July 2024 it was filed 7 days out of time.
Out of time
Consideration now turns to whether to extend the 21-day period within which the application was to be brought.
In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under section 366(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[1] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[2] Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[3]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional”[4]
(original emphasis)
The reason for the delay is understandable in this case. Firstly, the Applicant was never told expressly by Mr Scott, either orally or in writing that her employment relationship with the Respondent was to end with immediate effect from 21 June 2024. Whilst it is true the text message said the words “Today will be your last day…”, this was in the context of the Applicant requesting paid leave until the end of the following week with a stated intention to return to work on 1 July 2024.
The Applicant was not a casual employee. As she was a permanent employee, issues such as notice are relevant to her, and were not discussed. The Applicant subsequently engaged in communications with the Respondent’s accountant Ms Delany during dates in the week of 21 June 2024. It is apparent from these written communications that the Applicant did not understand she had been dismissed and was seeking approval of paid leave which was being considered by Ms Delany on the basis that evidence was being requested to support the claim.
Secondly, the Applicant was subsequently provided a Separation Certificate through Centrelink which records her date of termination of employment as 28 June 2024. Further to this, the Applicant was provided a payslip recording payment during the pay period up to 30 June 2024, although it was made clear at the hearing that this payment was for outstanding accrued leave and not for hours of work performed, or notice pay.
In all of the circumstances it is not unreasonable that the Applicant was at least confused about her date of termination, having not been told a date of termination and then being provided a Separation Certificate by the Respondent stating that her date of termination was 28 June 2024.
It is also apparent from having read the text messages between the Applicant and Mr Scott that the Applicant was placing the Respondent on notice that she contested the actions the Respondent was taking. The Applicant was of the view on the basis of the information provided to her that by filing the application on 19 July 2024 the application was being filed within time.
A delay of seven days in filing the application does not cause any notable prejudice to the Respondent.
There will be factual contests in the matter should it proceed to a formal hearing. It is appropriate to treat the question as to the merits of the application as a neutral consideration.
There was no evidence that there was another person in a similar position to that of the Applicant and this is a neutral matter.
Conclusion
Having considered all of the matters I am required to take into account in section 366 of the Act, I am satisfied that there are exceptional circumstances in this case justifying a further period of seven days to allow the Applicant to file her application. On that basis I grant an extension of time to the Applicant.
The matter will be programmed for conference.
COMMISSIONER
Appearances:
K Mackay, Applicant
D Scott, of the Respondent
Hearing details:
2024
Brisbane (by Video)
3 September.
[1] (2011) 203 IR 1, 6 [15].
[2] Ibid 5 [13].
[3] Ibid 5–6 [13].
[4] (2018) 273 IR 156, 165 [38].
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