Leanne Foley v Jaybee's T/A Pet Store'N'More

[2016] FWC 122

[2016] FWC 122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Leanne Foley
v
Jaybee’s T/A Pet Store’N’More
(C2015/2403)

DEPUTY PRESIDENT KOVACIC CANBERRA, 7 JANUARY 2016

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Ms Leanne Foley (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 7 April 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Jaybee’s T/A Pets Store ’n’ More (Jaybee’s – the Respondent) on 17 March 2015 in contravention of the general protections provisions in the Act. The Respondent contends that Ms Foley was advised of her dismissal by letter on 21 November 2014, with her dismissal taking effect on 6 January 2015, and that as such her application had been lodged outside the 21 day statutory timeframe specified in s.366(1)(a) of the Act.

[2] The Commission issued Directions on 21 April 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[3] The application was the subject of a telephone hearing on the extension of time issue on 11 June 2015. At the telephone hearing Ms Foley appeared on her own behalf, while Mr Nino Sarkosh-Nejad and Mrs Sylvie Sarkosh-Nejad, the owners of Jaybee’s, appeared for the Respondent. Witness statements were provided by Mrs Sarkosh-Nejad and Mr Yobert Anvieh, Jaybee’s Store Manager.

[4] For the reasons set out below I have formed a view that Ms Foley was dismissed with effect from 6 January 2015 and concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5] Ms Foley commenced employment as a Sales Assistant with Jaybee’s around March/April 2012. Ms Foley was employed on a permanent part-time basis working two days per week.

[6] In November 2014 Ms Foley injured herself at home and was unable to attend work. Ms Foley was absent from work from 11 November 2014 until 17 March 2015 and continued to provide Jaybee’s with medical certificates throughout this period.

[7] Jaybee’s contends that it sought, without much success, to contact Ms Foley by both telephone and text message after her injury and to engage her in a conversation about her wellbeing and when she might return to work.

[8] In the absence of any communication from Ms Foley or being able to have such a discussion with her, on 21 November 2014 Jaybee’s wrote to Ms Foley terminating her employment. The letter stated, among other things, that “As we are a small business, we are unable to hold your position open indefinitely. Accordingly, it is with regret that we advise your position with Pet Store ‘n’ More is terminated, effective from 6 January 2015.”

[9] Ms Foley contends that she never received that letter.

[10] On 16 March 2015 Ms Foley sent a text to Mrs Sarkosh-Nejad advising that she would be returning to work the following day. When she did present for work on 17 March 2015, Ms Foley contends that she was advised that she had been dismissed with effect from 6 January 2015.

[11] On 19 March 2015 Ms Foley sent a text message to Mrs Sarkosh-Nejad requesting that a copy of the termination letter of 21 November 2014 be posted to her again.

[12] As previously mentioned, Ms Foley’s general protections application was received by the Commission on 7 April 2015. Relying on 6 January 2015 as the termination date results in Ms Foley’s application having been lodged 70 days outside the 21 day statutory timeframe, whereas relying on 17 March 2015 as the termination date means that Ms Foley’s application was lodged within the 21 day timeframe.

[13] In her application, Ms Foley contends that she was dismissed as a result of her injury and alleges that she was underpaid. Ms Foley has contacted the Fair Work Ombudsman (FWO) regarding these alleged underpayments The Respondent submits that Ms Foley’s termination was not dismissed due to her injury but rather as a result of her lack of communication to enable the efficient running of the business.

When was Ms Foley’s dismissed?

[14] A threshold issue in this matter is the date that Ms Foley was dismissed. Ms Foley submits that she did not receive the termination letter of 21 November 2014 and that she only became aware that she had been dismissed on 17 March 2015 when she returned to work. As noted above, the Respondent submits that Ms Foley was dismissed with effect from 6 January 2015 as set out in the termination letter. Further, Jaybee’s submitted at the telephone hearing that the address to which the termination letter of 21 November 2014 was sent to, is the same address which in a text message on 19 March 2015 Ms Foley asked for a copy of that letter to be sent to.

[15] A Full Bench of the then Australian Industrial Relations Commission stated in Beverly Jean Burns v Aboriginal Legal Service of Western Australia (Inc.) 1(ALS) that “In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such communication could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, i.e. 19 April 2000.”2

[16] While I acknowledge the possibility of the termination letter not having been delivered, I consider it more likely than not that it was delivered. Further, Jaybee’s submission that Ms Foley did not contact it after her pay ceased on 6 January 2015 (discussed further below) points to Ms Foley having received the termination letter and been aware that her employment had ceased from 6 January 2015.

[17] Against that background, and applying the approach in ALS, supports a finding that the termination letter would have been delivered to Ms Foley shortly after being posted on 21 November 2014 and that therefore her dismissal would have taken effect on 6 January 2015 as stated in the termination letter.

[18] Accordingly, Ms Foley’s general protections application was lodged 70 days outside the 21 day statutory timeframe. The Commission therefore needs to consider whether or not there are exceptional circumstances warranting it granting a further period for Ms Foley to make her application.

The Statutory Framework

[19] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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 like position.”

Whether to allow a further period for the application to be made

[20] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[21] In her application, Ms Foley stated, inter alia, that she was making her application within 21 days of her dismissal taking effect and that the letter of termination had been sent to the incorrect address.

[22] At the telephone hearing, Ms Foley submitted that she had not received the termination letter of 21 November 2014, reiterating her view that it had been sent to the wrong address. Ms Foley later submitted that she did not have a copy of the original termination letter and that she was not sure to which address it had been sent. Ms Foley also mentioned that she continued to provide medical certificates to Jaybee’s over the period 11 November 2014 to 16 March 2015 and that the first she heard of her dismissal was when she presented for work on 17 March 2015. Finally, Ms Foley submitted that she had sent Mr Sarkosh-Nejad a text message on 16 March 2015 advising that she would be returning to work the following day.

[23] In response to a question from the Commission, Ms Foley stated that despite being “messed up at the time” she would not have missed a letter like the termination letter.

[24] For reasons of completeness, I note that in both her application and at the telephone hearing, Ms Foley submitted that she suffered from depression and anxiety. However, Ms Foley provided no medical evidence to support that contention and did not seek to rely on her illness as a factor warranting an extension of time.

[25] As previously noted, Jaybee’s submitted at the telephone hearing that the address to which the termination letter of 21 November 2014 had been sent was the same address which in her text message of 19 March 2015 Ms Foley had asked a copy of that letter to be sent to. As to Ms Foley continuing to forward medical certificates to the Respondent, after unsuccessfully attempting to contact and engage Ms Foley in a conversation as to her situation, Jaybee’s submitted that it considered there was no point in further contacting Ms Foley. Jaybee’s further submitted that it did not consider it appropriate to contact Ms Foley’s doctor as her situation was a personal matter. The Respondent acknowledged that Mr Sarkosh-Nejad had received a text message from Ms Foley at 7.29pm on 16 March 2015 but submitted that he did not see the message until after Ms Foley had presented for work the following day.

[26] I have previously found that Ms Foley did receive the termination letter and was aware that her employment had ceased from 6 January 2015 for the reasons outlined at paragraph [16] above. This does not support Ms Foley’s contention that the first she learnt of her dismissal was on 17 March 2015. Further, the material before the Commission does not support Ms Foley’s contentions that the termination letter was sent to the wrong address which was the other key reason relied upon by Ms Foley for the delay.

[27] The above analysis does not support a finding of the existence of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[28] In response to questions from the Commission at the telephone hearing, Ms Foley indicated that she contacted the Commission and the FWO shortly after she learnt of her dismissal. Ms Foley did not point to any other steps she had taken to dispute her dismissal prior to lodging her general protections application.

[29] Jaybee’s submitted that the last payment made to Ms Foley was on 6 January 2015 and that no further payments were made to her after this date. Jaybee’s further submitted that if Ms Foley was under the impression that she remained employed by the Respondent then it was odd that she did not contact the Respondent to find out why she was not being paid. On this point, Jaybee’s highlighted that in the past if Ms Foley’s pay was not deposited into her bank account on the usual payment day that she would follow this up with the Respondent immediately.

[30] At the telephone hearing, Jaybee’s submitted that the only correspondence it had received from Ms Foley following her termination was her letter of 7 April 2015 querying her payslips. This was followed the following day by correspondence from the Commission forwarding Ms Foley’s general protections application. As noted above, Jaybee’s submitted that the reason for terminating Ms Foley’s employment was that she had not contacted the Respondent other than on 11 November 2014 when she advised of her injury.

[31] Based on the material before the Commission, it appears that Ms Foley did not take any action to dispute her dismissal prior to lodging her general protections application. This does not support a finding that there were exceptional circumstances.

(c) Prejudice to the employer (including prejudice caused by the delay)

[32] Ms Foley submitted that it is possible that the Respondent had been disadvantaged as a result of her absence from work, particularly as Jaybee’s was a small business.

[33] Jaybee’s submitted that it considered it unfair that it could be penalised because Ms Foley claims to have not received the termination letter of 21 November 2014. Jaybee’s further submitted that the medical certificates it received from Ms Foley were insufficient in managing the business, particularly as it was not receiving updates about Ms Foley’s wellbeing or her proposed return to work.

[34] At the telephone hearing, the Respondent contended that it would be prejudiced if an extension of time were granted and it was ultimately required to pay Ms Foley an amount of compensation. This is not an uncommon submission in such circumstances, but of itself does not equate to prejudice.

[35] I therefore consider this factor to be a neutral consideration.

(d) The merits of the application

[36] Ms Foley maintained at the telephone hearing that she had been dismissed because of her injury, adding that all she wanted as an outcome was to be paid what was owed to her. In other words, Ms Foley’s primary concern appeared to be rectification of the alleged underpayments.

[37] Jaybee’s contended at the telephone hearing that Ms Foley was dismissed because other than forwarding her medical certificates she did not contact or engage with the Respondent over the period 11 November 2014 to 16 March 2015. This was supported by Mr Anvieh’s witness statement in which he deposed that:

“1. At the request of the store owner, I made several attempts to engage the Applicant in a telephone conversation to enquire after her wellbeing and timing for her return to work, with no luck.The Respondent submitted that there is little evidence to support Mr Albanese’s case.

2. On the last occasion I telephoned the Applicant …The Applicant was very abrupt on the phone and said words to the effect, ‘What do you want.’ I advised I was calling to ask after her health and the call was ended.”

[38] Significantly, Ms Foley did not challenge Mr Anvieh’s witness statement.

[39] I have some sympathy for Jaybee’s submissions and consider it highly unusual and inappropriate that an employee would not keep their employer informed of their likely return to work in circumstances where they have been injured and absent from work for an extended period. Letting your employer know at 7.30pm that you intend to return to work the next day after months of no direct communication simply is not good enough. Having said that I nevertheless consider that there is insufficient material before the Commission which would enable me to form a considered view as to the merits of the application.

[40] In those circumstances, I consider this factor to be a neutral consideration.

(e) Fairness as between the person and other persons in a like position

[41] Ms Foley had nothing to say regarding this consideration.

[42] Jaybee’s submitted that a decision to grant a further period for Ms Foley to make her application could be setting a precedent for any employee to claim non-receipt of correspondence as a reason to seek an extension of time in such matters.

[43] I consider this factor to be a neutral consideration.

Conclusion

[44] The question of exceptional circumstances was dealt with in Nulty in the following way:

“[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.”

[45] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[46] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

Appearances:

L. Foley on her own behalf.

N. Sarkosh-Nejad and S. Sarkosh-Nejad for the Respondent.

Hearing details:

2015.

Canberra and Melbourne (telephone):

June 11.

 1   Print T3496

 2   Ibid at [24]

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