Kym Hutchins v Cahow Pty Ltd T/A McDonalds

[2016] FWC 187

[2016] FWC 187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kym Hutchins
v
Cahow Pty Ltd T/A McDonalds
(U2015/16275)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 JANUARY 2016

Application for relief from unfair dismissal.

[1] Ms Kym Hutchins alleged that the termination of her employment by Cahow Pty Ltd trading as McDonalds on 28 October 2015 was unfair.

[2] Her unfair dismissal application lodged on 27 November 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Ms Hutchins first approached the Association of Australian Workers about the reduction in her hours of work before June 2015. It was her view that her hours were being reduced because of her age. Mr Swanton of the Association told her that she would need evidence to support this claim. Ms Hutchins last worked on 26 June 2015 and at common law, her employment came to an end at the conclusion of her last engagement. Ms Hutchins did not get any shifts for the next three weeks and she sent her manager a message via facebook, but did not get a response. Ms Hutchins then assumed that she would not get any further shifts. She approached the Association who told her that she should approach the store managers to discuss the issue. She decided not to take this advice because she did not think it would end well. She did not at this time ask the Association to lodge her unfair dismissal application. I accept that casual employees will often find it difficult to determine when their employment has ended, because a casual may be on the books for a period of time after the last shift worked. However, after Ms Hutchins “assumed” she would get no further shifts, she did not take any steps to confirm the status of her employment.

[6] Ms Hutchins was then advised by an email sent on 30 October 2015 that her employment had been terminated. Mr Luders, the owner of the business, said that this occurred because Ms Hutchins had not worked for a significant period of time.

[7] Ms Hutchins said she was told by Mr Swanton that she had 60 days to lodge an unlawful dismissal application. Mr Swanton was unaware that s.774 of the Fair Work Act 2009 (the Act) also provided a 21 day time limit. Mr Swanton said it was his view that Ms Hutchins needed concrete evidence to make an unlawful termination application and it was only when he went into the Commission’s office that he realised that she needed to make an unfair dismissal application and it was made that day.

[8] The Association is not a registered trade union. It is very concerning that Mr Swanton did not know about the amendments to the Act, which took effect from 1 January 2014 until advised at the hearing of this matter.

[9] Ms Hutchins’ representative erred. Representative error, where the employee is blameless, weighs in favour of a finding of exceptional circumstances.

[10] However, while representative error explains some of the delay, it does not explain the delay between 26 June 2015 and 30 October 2015. It is difficult for a casual employee to be aware of when his or her dismissal takes effect. Ms Hutchins was faced with a declining number of shifts. They then stopped entirely. Ms Hutchins was aware from late July 2015 that she was not going to be offered further shifts. Ms Hutchins did not seek to resolve this at that time, despite the advice of Mr Swanton. Ms Hutchins only took action when McDonalds advised her that she was considered to be a past crew member and that she could no longer access metime using her login.

[11] I am satisfied that Ms Hutchins has a reasonable explanation for the delay after 30 October 2015, however, I am not satisfied that Ms Hutchins has a reasonable explanation for the whole of the delay. I find that this criterion is neutral.

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

[12] Ms Hutchins was not aware of the dismissal when it took effect. She was not formally advised that she was no longer an employee on 30 October 2015. This weighs in favour of a finding that there are exceptional circumstances.

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

[13] Ms Hutchins took no action to find out why she was not offered further shifts between 26 June 2015 and 30 October 2015. This weighs against a finding that there are exceptional circumstances.

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

[14] McDonalds submitted that it would suffer prejudice if an extension of time were granted as it would need to devote additional time and resources to defend the claim. Further, the delay meant that McDonalds was not able to remedy the dismissal earlier. McDonalds, on being made aware that Ms Hutchins was disputing her dismissal, offered to reinstate her. Mr Swanton submitted that this had not been accepted because Ms Hutchins considered the relationship to be broken. Had this application been lodged earlier, McDonalds may have been able to remedy the situation before the relationship broke down. The prejudice to McDonalds weighs against a finding that there are exceptional circumstances.

(e) the merits of the application;

[15] McDonalds submitted that Ms Hutchins was engaged as a casual employee. It did not submit that Ms Hutchins was not engaged on a regular and systematic basis. There was no explanation provided as to why Ms Hutchins was no longer rostered to work.

[16] Ms Hutchins had worked for the business since 2013. Ms Hutchins worked an average of 5.8 hours a week.

[17] Upon being made aware that Ms Hutchins considered the dismissal to be unfair, McDonalds offered to re-engage Ms Hutchins, but she declined the offer.

[18] Ms Hutchins claim that she was unfairly dismissed in June 2015 is not without merit. This weighs in favour a finding that there are exceptional circumstances.

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

[19] No submissions were made on this criterion.

Conclusion

[20] While Ms Hutchins has not provided a reasonable explanation for the whole of the delay, her claim that she was unfairly dismissed is not without merit. The fact that McDonalds did not advise Ms Hutchins formally that she was no longer employed weighs in favour of a finding of exceptional circumstances. However, there are factors which weigh against such a finding, in particular the prejudice that McDonalds will suffer if required to defend an unfair dismissal case five months after Ms Hutchins last worked. In all the circumstances, I am not satisfied that there are exceptional circumstances.

[21] Even if I am wrong and there are exceptional circumstances, the decision to grant an extension of time is discretionary. I am required to, in making decisions under Chapter 3 of the Act, afford the parties a fair go all round. Had this application been lodged earlier, McDonalds may have been able to remedy the situation before the relationship broke down. In the period between June and December 2015, Ms Hutchins had access to advice and she chose not to take steps to either clarify her position with her managers, as suggested by Mr Swanton, or file an unfair dismissal application. She in effect sat on her hands for at least three months until McDonalds acted. In those circumstances, had I been called on to exercise my discretion, I would have declined to do so.

[22] Ms Hutchins’ application for an extension of time is refused and hence her application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr M Swanton on behalf of the Applicant.

Mr W Luders on behalf of the Respondent.

Hearing details:

2016.

Telephone hearing:

January 11.

 1   [2011] FWAFB 975.

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