Kim Moore v Marina International Mackay Management P/L T/A Clarion Hotel Mackay Marina

[2019] FWC 509

[2019] FWC 509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kim Moore
v
Marina International Mackay Management P/L T/A Clarion Hotel Mackay Marina
(U2018/8315)

COMMISSIONER SIMPSON BRISBANE, 29 JANUARY 2019

Application for unfair dismissal – Jurisdictional objection – Whether the application was lodged out of time –– whether extension of time should be granted – no exceptional circumstances existed – extension not granted – application dismissed.

[1] This matter concerned an application made in accordance with section 394 of the Fair Work Act 2009 (the Act) for an Application for unfair dismissal remedy. The application was made by Ms Kim Moore who alleges her employment with Marina International Mackay Management P/L T/A Clarion Hotel Mackay Marina (Clarion Hotel) was terminated unfairly.

[2] On 13 August 2018 the Commission received a “Form F2 – Unfair Dismissal Application” from Ms Moore dated 13 August 2018. Part 1.4 of the Application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Ms Moore answered “yes”. Ms Moore submitted she was terminated on 24 July 2018, and therefore her application was submitted within the 21 day period prescribed by the Act. This was disputed by Clarion Hotel. It submitted the date of her dismissal was the 25 June 2018.

[3] On the morning of 12 December 2018 I conducted a hearing to firstly determine the date of Ms Moore’s dismissal, and secondly, should I find in favour of the Respondent on that point, whether an extension should be granted. Mr Hunter Trotman of Queensland Workplace Law appeared on behalf of the Applicant, and Mr Nicko Ivanov appeared for the Respondent.

Legislation

[4] The Act provides that a person who has been dismissed and applies to the Commission for it to deal with an unfair dismissal application pursuant to s.394 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.

[5] Section 394 of the Act provides:

“ Section 394 Application for unfair dismissal remedy

[6] (2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWCC 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 GWC is satisfied that there are exertional 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;

(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.”

Date of Dismissal

[7] It was not disputed by the parties that a meeting occurred on 25 June 2018 between Ms Moore and the Respondent (25 June Meeting). However the parties have conflicting versions as to the nature of the 25 June Meeting.

[8] Ms Moore submitted that the 25 June Meeting was in the form of a performance review, and the purpose was to discuss potential issues that impacted Mr Ivanov and other employees at Clarion. Ms Moore gave evidence that Mr Ivanov said to her words to the effect that the business would not be renewing her employment contract. 1Ms Moore said however that at no point during the meeting did Mr Ivanov use the words “termination” or “dismissal”.2

[9] Ms Moore submitted that it was not until 24th July 2018 that an email was sent from Mr Ivanov to Ms Moore with an attachment of the termination letter. This termination letter discussed issues that Ms Moore has been spoken to previously throughout the course of her employment. This letter stated Ms Moore’s employment was “terminated as of 3pm 25 June 2018.”

[10] Ms Moore submitted that it is notable that the author of the letter does not refer to the events of 25 June 2018 as the date of the dismissal, but rather as a date upon which discussions occurred with Ms Moore. Ms Moore submitted this is consistent with her version of the events of the meeting.

[11] Ms Moore submitted that she believed she was being stood down at the 25 June Meeting, and that she would be presented with findings of an investigation into her conduct and an opportunity to respond to these findings. Ms Moore submitted that she was not given plain or unambiguous communication of the dismissal until the termination letter on 24 July 2018.

[12] Clarion Hotel submitted that Ms Moore was terminated at the 25 June Meeting. Mr Ivanov gave evidence that at the end of the meeting he told Ms Moore that the business was not willing to continue her employment and that she was to return all company property, and that she would be escorted off the property. 3 Rachel Ellis also gave evidence that she was present at the meeting where Ms Moore was told her employment would be terminated due to several verbal warnings, her behaviour towards other staff, false reporting on her timesheets and issues with her general hygiene.4

[13] Clarion Hotel submitted that Ms Moore’s actions following the 25 June Meeting demonstrated that Ms Moore was aware she had been terminated. It submitted evidence in the form of a text message on 27 June 2018 whereby Ms Moore states “I thought I was entitled to an extra weeks (sic) pay as you put me off?” Mr Ivanov gave evidence that on 30 June Ms Moore returned to the hotel to hand back hotel property. Clarion also submitted an email dated 18 July 2018 where Ms Moore acknowledge the receipt of her separation certificate and also asked for a statement as to why she was “put off”.

[14] Mr Ivanov submitted Ms Moore’s termination letter was drafted and printed on 25 June 2018, however he was unable to provide the letter to Ms Moore as she abruptly left the meeting. He said it was for this reason the letter was sent to Ms Moore by email on 24 July 2018. Mr Ivanov stated the reason why the termination letter was dated 24 July 2018 was because it was reprinted from his computer which was programmed to date documents from the date they are printed. Mr Ivanov could not produce a copy of a termination letter dated 25 June.

Consideration

[15] I prefer the evidence of the Respondent in relation to the nature of the 25 June Meeting. I accept the evidence of Mr Ivanov and Ms Ellis that Ms Moore was clearly advised her employment was terminated. Further I accept that Ms Moore’s conduct after the 25 June Meeting, and prior to receiving her termination letter, indicated she was aware she was terminated.

[16] In closing submissions the Applicant’s representative conceded that the date of her dismissal was in fact 25 June 2018, therefore making the application twenty eight days out of time. I will therefore not consider this point any further.

[17] It is therefore necessary to determine whether an extension of time should be granted for Ms Moore to file her application.

Extension of Time

Section 394(3)(a) – Reason for Delay and Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect

[22] Ms Moore has submitted the reason for delay is due to the confusion she experienced as to her employment status following the 25 June Meeting. She submitted that this confusion was caused by Mr Ivanov, and remained unresolved until receiving her termination letter on 24 July 2018. 5

[18] Ms Moore submitted that receiving the termination letter on 24 July 2018 led her to believe that the statutory period commenced the day she had received the termination letter. Ms Moore submitted there was no reason why Mr Ivanov could not have provided her with the termination letter on 30 June 2018 when she returned hotel property.

[19] Ms Moore submitted that it was open to the Commission to find that Mr Ivanov acted deliberately in his intention to cause confusion to Ms Moore as to the status of her employment and to resolve the confusion only after the 21 day time limit had passed.

[20] Clarion Hotel maintained its view that Ms Moore clearly understood that her dismissal took effect on 25 June 2018. It submitted that her actions following the 25 June Meeting demonstrated there was no confusion on the part of Ms Moore.

[21] Clarion Hotel submitted that it was not in a position to provide Ms Moore with the termination letter on 30 June as she dumped her uniforms at reception and Mr Ivanov was not present at the time.

[22] Clarion strongly disputed that Mr Ivanov intentionally caused confusion for Ms Moore until the statutory time expired.

[23] I am not satisfied that Ms Moore has provided sufficient reasons for the delay. I am not satisfied that Ms Moore was confused as to the status of her employment. I have already found that her actions following the June 25 Meeting, before she received the termination letter, indicated she was aware her employment was terminated.

[24] Even if I was to accept Ms Moore’s submission that she was confused, I am not satisfied this prevented her from erring on the side of caution and submitting the application form within 21 days from 25 June.

[25] I am not satisfied Ms Moore’s reasons for delay are sufficient to weigh in favour of granting an extension under s.394(3)(a).

[26] Further, I am satisfied Ms Moore was aware of her dismissal on 25 June 2018 and had enough time to submit her application within 21 days. This does not tend to support the case for the granting of an extension under s.394(3)(b).

Section 394(3)(c) – any action taken by the person to dispute the dismissal

[26] Ms Moore submitted that her emails to Mr Ivanov dated 14, 16, 23 and 24 July are all evidence of a desire for Ms Moore to know the reasons for why she was stood down and her subsequent dismissal. She submitted it was clear from the content of her email to Mr Ivanov on 24 July that she disputed the reasons for her dismissal that appeared in the termination letter.

[27] Clarion again relied on its position that Ms Moore was aware of her termination on 25 June 2018.

[28] Whilst I have made a finding that Ms Moore was aware she was terminated on 25 June 2018, I am not satisfied that the reasons for her dismissal were fully communicated to her at the 25 June Meeting. The fact she did not receive the reasons in writing until 24 July means Ms Moore did not have an opportunity to dispute all of the reasons prior to this time.

[29] Clarion Hotel has not in my view provided a complete answer as to why it took almost a month to provide Ms Moore with a termination letter outlining reasons for her dismissal.

[30] I am satisfied Ms Moore disputed her dismissal. This weighs in favour of granting an extension.

Section 394(3)(d) – Prejudice to the employer

[28] Ms Moore submitted that the fact Clarion Hotel submitted a statement of Mr Burrows from 2017 means that the delay does not cause prejudice to the employer. It submitted any prejudice caused by Mr Deacon’s resignation is resolved by Mr Deacon’s willingness to give evidence. Clarion Hotel did not provide any direct evidence on this point.

[31] I am of the view that whilst proceeding with the application may cause some inconvenience to the Employer given Mr Deacon’s resignation, it would not be sufficient enough to weigh in favour of not granting an extension.

Section 394(3)(e) – The merits of the application

[32] The parties competing contentions in relation to the dismissal give rise to factual disputes that I should not give detailed consideration to as they go to the substantive case. I am satisfied that it is appropriate to regard the consideration under s394(3)(e) as a neutral matter.

Section 394(3)(f) – Fairness as between the person and other persons in a similar position

[32] The parties did not make submissions that Ms Moore had been treated unfairly compared to other employees. I will regard this criteria as neutral.

Conclusion

[33] I have taken into account each of the elements of s.394(3) of the Act. This matter does not give rise to exceptional circumstances that would warrant the granting an extension of time beyond the 21 day time limit. On that basis the application is dismissed.

COMMISSIONER

Appearances:

Mr Hunter Trotman of Queensland Workplace Law appearing for the Applicant.

Mr Nicko Ivanov appearing for the Respondent.

Hearing details:

2018,

Brisbane:

December 12

Printed by authority of the Commonwealth Government Printer

<PR704363>

 1   Affidavit of Kim Moore at paragraph 38.

 2   Affidavit of Kim Moore at paragraph 55.

 3   Statement of Nicko Ivanov (undated).

 4   Statement of Rachel Ellis (undated).

 5   Applicant’s Submissions – Extension of Time at paragraph 6.