Lisa Clark v Flair Jewellery Pty Ltd
[2023] FWC 833
•5 APRIL 2023
| [2023] FWC 833 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Lisa Clark
v
Flair Jewellery Pty Ltd
(C2023/44)
| COMMISSIONER YILMAZ | MELBOURNE, 5 APRIL 2023 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time denied.
On 4 January 2023, Miss Lisa Clark lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Flair Jewellery Pty Ltd (Flair). Miss Clark commenced employment on 7 October 2022, and she submits her dismissal took effect on 10 December 2022.
Flair, a family-owned jewellery store on the Sunshine Coast engaged Miss Clark as a casual sales employee at hours of work that accommodated her TAFE classes timetable. It acknowledges that Miss Clark sustained a serious medical episode and submits that it accommodated her absence from work while her medical condition prevented her from working. However, in December 2022 following communications between Miss Clark and staff at the store, it determined that she would not be offered further work. This was communicated to her in a telephone conversation on 10 December 2022 and confirmed in writing dated 19 December 2022.
Both parties were self-represented.
Jurisdiction objections
Flair object to the application on the basis that it was lodged in excess of the 21 day statutory time frame and submits that Miss Clark was not dismissed but simply not offered further shifts.
Of the two jurisdictional objections I will firstly deal with the question of whether Miss Clark was dismissed.
Was the Applicant dismissed?
A general protections involving dismissal application under s.365 of the Act contains two limbs, one that there is a dismissal and secondly that the Applicant alleges that the dismissal occurred because of a contravention of general protections. Relevantly s.365 of the Act provides:
Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Section 365 requires that the person that alleges the dismissal is a contravention of the Act must be “dismissed”. The Act further defines dismissed. The relevant provision is s.386:
Meaning of dismissed
(1) 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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
To make a general protections dismissal application the person must have been dismissed as defined by the Act. Before exercising its powers under s.368 of the Act, the Commission must establish that the person was dismissed.[1]
A dismissal at the employer’s initiative is where the employer’s actions directly and consequently result in the termination of the employment relationship, and had the employer not taken such action, the employee would have remained in employment.[2] Further, s.386 excludes certain situations from the definition of dismissed. Those situations include:
- employment for a specified time
- a specified task
- a duration of a specified season
- on completion of a task, or
- at the end of the season.
It is not in dispute that Miss Clark was employed as a casual and none of the exclusions in s.386 applied to her engagement. Flair submit that they determined to no longer offer Miss Clark shifts. Prior to her medical episode she worked on a weekly basis even though her days of work varied depending on her availability due to her school timetable. Both Miss Clark and Flair submitted that it was intended that Miss Clark would work over the Christmas period which is ordinarily busy for Flair. Due to the school term ending Miss Clark would have been available to work longer hours. The reason Flair submits that it no longer offered Miss Clark further shifts was because of the communications between herself and staff while she was absent from work. In this matter Flair’s decision to no longer offer shifts and to communicate this to her in a telephone call of 10 December 2022 is a direct action of the employer resulting in the termination of employment. Further the correspondence of 19 December 2022 to Miss Clark from the Director confirms termination at the initiative of the employer. The letter makes clear that Flair believed that Miss Clark was not reliable, and due to her correspondence and the telephone call, the relationship was deemed irretrievable. It describes the necessity for Flair being a small business to maintain staff that are cohesive, respectful and trained. Having stated that Miss Clark was on a three-month probation period and only completed 8 of her 18 shifts, the letter suggests that she was not trained to go into the busy trading period. For this reason, Miss Clark was dismissed as defined by the Act under s.368 and is eligible to make a general protection application under the first limb of s.365 of the Act.
Having determined that Miss Clark was dismissed, I will now turn to the extension of time application.
Extension of time
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged four days late.
Applicant’s submissions
Miss Clark submits that she relocated to the Sunshine Coast to commence a Diploma at the Mooloolaba campus of TAFE Queensland in July 2022. On 7 October 2022, she commenced working as a casual with Flair and on the same day she was accepted to rent a unit at $330 per week. Prior to residing at this rental property Miss Clark submits that she lived in backpacker accommodation. She submits that her health had been an issue for some years requiring medical care. Her poor health resulted in taking time off work and time off her studies. However, she submits that she always provided her employer and the TAFE notice of her absence.
On 22 November 2022 Miss Clark felt especially unwell and while at the bus stop on her way to the hospital in the evening of 23 November 2022 she experienced a seizure. Miss Clark experienced facial injuries as a consequence of the episode and while in hospital experienced further medical episodes. Understandably Miss Clark was quite frightened and alone.
Miss Clark’s grievance includes her disappointment in her TAFE and employer for not making contact with her while she was in hospital.
Miss Clark alleges that her dismissal was because of her disability, that once she exercised her rights to take sick leave she was dismissed. She also alleges that one of the staff spoke to her quite rudely.
Miss Clark submits that she received no income while she was absent from work other than receiving Austudy payments which covered her rent and little more. She is aggrieved that her employment was terminated when she was fit to return to work. Further she received no notice of her termination of employment and due to her financial circumstances, she had to leave the Sunshine Coast to live with her family in Bundaberg. Further her financial circumstances were exacerbated as she required costly additional medical care, struggled to meet her other living costs as well as the costs and the effort in terminating her lease. While Miss Clark was given notice that her lease would expire on 14 February 2023, due to her medical episodes and loss of her employment, she submits that she had to depart earlier.[3]
Miss Clark is seeking financial compensation from Flair for the time away from wok while sick, wages she would have earned had she not been sick and compensation for loss of job and the resulting expenses for ending her lease including costs associated with storage of her belongings.
Respondent’s submissions
Flair submits that during Miss Clark’s employment they were as supportive as possible in accommodating her illness. Ultimately the tone and expressions in her text messages, email and telephone communication to staff and the Director were aggressive. Flair formed the view that reengagement was not tenable.
Flair further submit that it cannot be held responsible for Miss Clark’s decisions concerning the rental property, her decision to move to Bundaberg or elsewhere and in general her budget decisions either prior, during or after her employment with Flair.
Flair denies the allegations by Miss Cark concerning the alleged manner in which she was communicated to by Flair staff.
Flair tendered in evidence the communications via text and email to demonstrate that the Flair staff were supportive of Miss Clark during her absence from work, but also to demonstrate the aggressive tone and language used by Miss Clark towards Flair staff.
While Flair is sorry for Miss Clark’s medical circumstances and her financial decisions, it states it cannot be held responsible for them.
Flair submits that the aggressiveness from Miss Clark towards staff at Flair was a concern and the reason for no longer offering her shifts. It submits that it had intended for Miss Clark to return following her medical clearance. However, the aggressive communications from her raised concerns for the safety of staff and ultimately this was the reason she was no longer offered shifts.
Flair relies on the text communications, the telephone call of 10 December 2022 and its letter dated 19 December 2022.
Consideration
General protections applications involving dismissal must be made within 21 days.
However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
‘(a) The reason for the delay; and
(b) Steps taken to dispute the termination; and
(c) Prejudice to the employer; and
(d) Merits of the application; and
(e) Fairness between the person and other persons in a like position’
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[4] where it was held that:
“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 regular occurrence, even though it can be a on 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.”[5]
I now turn to Miss Clark’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
The general protections involving dismissal application was lodged with Melbourne Registry on 4 January 2023 at 2:11pm AEDT, four days late.
Miss Clark submits that she initially submitted her claim on 30 and 31 December 2022 from Bundaberg Officeworks. She states that she took photos of her application. Prior to the hearing, Miss Clark located a copy of her initial application which she states was sent electronically to [email protected]. Miss Clark tendered evidence from the Commission’s FOI team email having located her application on 9 February 2023. On 30 December 2022 at 2:09pm AEDT Miss Clark scanned and sent her Form F80 waiver of application fee. This form includes reference to the options for filing being the online lodgement service, by fax or post or in person. The email address for filing the form is not identified on the form tendered.
In correspondence on 9 February 2023 from the FOI Team, it attached an email dated 31 December 2022 at 4:24pm AEDT containing the scanned Form F8 application sent from Bundaberg Officeworks to [email protected]. Miss Clark also tendered in evidence her photograph of her application when sent from Bundaberg Officeworks which shows 3:24pm AEST (Queensland time).
It is unclear why Miss Clark sent her application to the Freedom of Information team at the Commission, other than she stated that at the time she was still suffering from a brain injury, and this caused confusion.
The records show that on 3 January 2023 Miss Clark contacted the Commission seeking confirmation of receipt of her application and fee waiver. Miss Clark was asked to send her information and any proof that her application was lodged within the statutory 21 days. Miss Clark was given an email address to send her materials. The records show the application which differed from the Form F8 sent to [email protected] was received on 4 January 2023.
Registry left a voice mail message on 8 January 2023 for Miss Clark advising further to her email, that it found one copy of the Form F80 sent to [email protected] but no application. It advised that a ‘no application’ email was sent on 30 December 2022.
On 10 January Registry contacted Miss Clark leaving a voicemail message about her incomplete form. The records show that her application to [email protected] could not be located. I observe the email address differed from the email address previously stated in the first Form F8 and the email cover page of 4 January 2023. I note in the course of email communication with the Commission, Miss Clark used three different email domain addresses (gmail.com, outlook.com and dougies.com.ay). Miss Clark corrected her application with the missing information and changed her email address. On 10 January 2023, Registry updated Miss Clark’s email address by removing reference to the domain dougies.com.ay and inserting the domain outlook.com and it forwarded to Miss Clark an acknowledgement of receipt of her application.
In relation to the application lodged on 4 January 2023 and the application emailed to [email protected] I observe the Form F8 is not the same. The first form is handwritten and contains details that are not in the second typed application which also omits answers to questions 3.1 and 3.2, nor is the form signed or dated. The difference concerns, among other matters, details in the remedy sought and the particulars concerning alleged facts of the dismissal.
In relation to Miss Clark’s medical condition, she filed in the Commission an outpatient referral dated 27 January 2023 which she asked to remain confidential and not passed onto Flair. Given the sensitive nature of the information contained in the referral I do order that the documentation remain confidential. Other than referencing the cause for admission to hospital and medical history, the referral does not directly concern Miss Clark’s medical state in relation to her capacity to make and lodge her application.
Miss Clark further submits the reason for the delay was because she was unemployed she had placed her “laptop into hock at Cash Converters for money to pack, clean and vacate her apartment immediately”.[6] She states that she struggled to make financial ends meet and this led to her difficulty to complete the application form on her phone. In addition, she states that she focussed on her medical condition and specifically in relation to completing her application she sought out free advice from various legal entities, she used internet cafes and the Christmas and new year holidays delayed her access to the resources she required to complete the form. In relation to her health, Miss Clark submits that the stress and effects of a brain trauma added to her challenge to complete and submit the form.[7]
Flair submit that it was aware that Miss Clark lived and paid rent for her apartment well before commencing employment at Flair. It submits that it was understood that the lease would expire on 14 February 2023, well after the required 21 days to file an application with the Commission. And to reasonably allow for the cleaning to vacate the premises. It submits that Miss Clark presented a medical clearance on 10 December 2022, therefore her health should not be a factor in considering an extension of time.[8]
There must be a credible reason for the delay.[9] Miss Clark refers to her dismissal being unlawful. Miss Clark did not file a Form F9, but a Form F8 - General protections application. It is not in dispute that Miss Clark was aware of the 21 day time limit to file her application, and the address was not [email protected] for either an unlawful termination or general protection claim. Had Miss Clark used the Commission’s online form, the linked email address for filing would have been recorded on the cover page. Had Miss Clark emailed her Form F8 to either the Melbourne Registry or any Commission office on 31 December 2022, her application would have been on time.[10] The second application sent to Registry was different to the first form and therefore I consider this to be a new application. As mentioned earlier this application was lodged on 4 January 2023 and Miss Clark received acknowledgement of this application.[11] This application was sent from Port Douglas. The evidence shows Miss Clark sent her Form F80 from the Bundaberg Officeworks on 30 December 2022, she submits that her Form F8 did not send so she sent it from the Bundaberg Library on 31 December 2022. There is no evidence that the Form F8 was sent from the Bundaberg Library. At some point she travelled to Port Douglas and contacted the Commission on 3 January 2023 to inquire about her application.
Section 365 of the Act requires applications to be made within 21 days after the dismissal took effect. I am satisfied the dismissal took effect on 10 December 2022.
For the period of 10 December 2022 until 31 December 2022, the 21-day period to lodge an application, Miss Clark contends that because she was unwell she focussed on her health and used the time to vacate her apartment. The evidence shows that on 30 and 31 December 2022, Miss Clark did make an effort to complete her application but did not correctly lodge the application with the Commission. On Tuesday 3 January 2023 Miss Clark contacted the Commission to enquire whether her application was received and on learning that there was no record of it, she filed a fresh application the following day. This prompt action shows that Miss Clark acted with urgency but leaving her first application to the final day to file was to her detriment.
In a recent decision of the Commission[12] the importance of filing applications in accordance with the Rules was considered. Section 585 of the Act provides:
Applications in accordance with procedural rules
An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind.
The Commission has made Rules regulating how applications are to be made. Rule 13 provides how documents are to be lodged and specifies that documents emailed to the Commission are to be made in accordance with Rule 14. The relevant provisions of Rule 14 are as follows:
14 Lodging documents by email
(1) A document that is required or permitted to be lodged with the Commission under these Rules may be lodged by emailing the document to an email address approved by the General Manager for the lodgment of documents by email.
Note: The email addresses approved for lodgment of documents are available at If a document lodged in accordance with this rule is an application commencing a matter:
(a) the General Manager must send an acknowledgment of lodgment, by email, to the person lodging the document; and
(b) the application is not taken to have been lodged until the acknowledgment of lodgment mentioned in paragraph (a) has been sent; and
(c) once the acknowledgment of lodgment mentioned in paragraph (a) has been sent, the application is taken to have been lodged at the time it was received electronically by the Commission.
Where an application is lodged by email, the application is made at the time it was received electronically by the Commission, provided that the Commission has sent an acknowledgment of the lodgement by email.[13] Based on the evidence the first Form F8 was not received by the Commission consistent with the requirement of the Fair Work Commission Rules 2013 and evidently no acknowledgement of receipt was sent to Miss Clark. The second application, lodged out of time on 4 January 2023, was sent pursuant to the requirements of the Fair Work Commission Rules 2013 and the application was acknowledged. The email address [email protected] is not an email address approved under the Rules and did not commence the matter. I note further that no acknowledgement email was sent to Miss Clark.
In relation to submissions regarding hardship, I do not consider Miss Clark’s submissions sway in favour of an extension. Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, Miss Clark was prevented from or seriously impeded in lodging her application.[14] There was no evidence of any impediment, but rather the evidence demonstrates that Miss Clark’s priorities were to vacate her premises and other priorities.
Miss Clark further relies on her medical condition to explain the delay. From the evidence, the communications with the Commission do show that Miss Clark appeared emotional, stressed and at times confused, but the evidence does not show that she was incapable of filing her application.
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[15] No medical evidence to explain the delay or any effect on filing the application was tendered. Miss Clark submits that she suffered medical episodes that caused a brain injury, the evidence of the medical episodes are not disputed. Miss Clark presented a medical clearance to return to work from 10 December 2022, and other than this evidence there is no direct medical evidence to explain the delay on medical grounds, even though the referral referenced occasional physical symptoms. While I empathise that the medical episodes were traumatic for Miss Clark and her personal circumstances were difficult, for an extension of time the bar is a high one requiring evidence to find exceptional circumstances that caused the delay to weigh in favour of an extension.
For these reasons I do not consider the reasons given for the delay to weigh in Miss Clark’s favour.
Steps taken to dispute the termination
Miss Clark submits that she asked the director to repeat his statements to ensure she understood him correctly.[16]
Flair’s Director submits that during the conversation on 10 December 2022, Miss Clark’s comments were “insulting” and there were threats of legal action. He submits that he received no further communications until 17 January when he received notification of the application.[17]
Tendered in evidence were text messages to the Office Administrator from Miss Clark on 10 December 2022 which followed the conversation with the Director. I would describe these texts as uncalled for and perhaps intimidating to a staff member that consistent with the evidence did not show anything other than support during the absence. The text does implicate the staff member into probable action with “Fair Trading”.
Also tendered in evidence is an email to sales@flair in response to the letter explaining why no further shifts will be offered, Miss Clark provides a colourful and somewhat incoherent response which suggests she may take further action, although what that action may be is unclear. The email does not seek from the Director a review of the decision, but rather uses the following language: illegal, discriminative, unjust, inappropriate, fake, unfair work, unethical, unfair pay, illegal notice and termination due to induced coma as well as other statements. It is unclear from the correspondence what actions against the Directors, staff and the company is to be taken.
Prejudice to the employer
Miss Clark submits that Flair was not placed in any position of disadvantage taking into account that she filed on time but to the wrong email address.[18]
Flair submit the lateness of the application means that it arrived during their busiest trading time and the short period of 7 days was difficult to provide a considered material response. It is also noted that the short time to respond resulted in an inability to obtain legal advice to what it characterises as an unfair and unjustified claim.[19]
While Flair was inconvenienced by the application and as it considers the application unfair and unjustified this is not sufficient to find that it has been prejudiced by the late application. I observe that Flair does not submit that it would suffer prejudice should the extension of time be granted. A relevant prejudice is one that the respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. The costs incurred in defending a claim in respect of which an extension of time has been granted are not a relevant prejudice. They are costs that the respondent would have incurred, had the application been made within 21 days of the dismissal taking effect.[20] I do not find that Flair would suffer prejudice by an extension of time, however, the mere absence of prejudice is an insufficient basis to grant an extension, therefore this consideration is neutral.
Merits of the application
Miss Clark alleges breaches of the following provisions:
s.340 Protection workplace rights
s.346 Protection industrial activities
s.351 Discrimination because of illness sick and
s.352 Temporary absence
Miss Clark submits that she exercised a workplace right by taking sick leave and due to taking sick leave she was dismissed. The undisputed evidence shows that Miss Clark was employed as a casual employee in receipt of a casual rate of pay. Sick leave is not an entitlement for casual employees. What Miss Clark did do is advise her employer of her unavailability for shifts because of her medical condition. Flair acknowledged her unavailability, and all text communications relate to the timeframe Miss Clark was unavailable and when she would be available to return to work. While Flair did not request medical certificates, Miss Clark nevertheless presented these certificates via text and acknowledgement of these certificates was made by the Office Administrator. To successfully argue there is a breach of workplace rights, Miss Clark would need to establish that she had a workplace right and that Flair took adverse action. Miss Clark had a right not to make herself available to work while unwell, however, Flair submit that no adverse action was taken.
Section 346 of the Act relates to adverse action because a person is or is not an officer or member of an industrial association or engages or has engaged or proposes to engage in industrial action or does not engage or has not engaged or does not propose to engage in industrial action. This section appears to be irrelevant to Miss Clark’s application. There is no evidence of membership of a union or suggestions of any industrial action by Miss Clark.
Section 351 concerns where the employer has discriminated based on a protected attribute. Miss Clark submits that she has been sick. While Miss Clark suffered a medical episode, there was no evidence that she has an ongoing disability. She does allege that some comment was made by her of her past ill health, however, in regard to this protection a causal relationship is required between a disability or perceived disability and the reason for the dismissal. The evidence concerning the facts concerning the reason for the dismissal is disputed.
Section 352 concerns adverse action because an employee was temporarily absent from employment. Again, the facts are disputed concerning the reason for dismissal.
The facts are contentious between the parties. However, the text and email evidence filed does show:
On 24 November 2022, Miss Clark informed the Office Administrator that she experienced a seizure and was in hospital. The attached picture resulted in a response that the news was not good, but to “take care don’t worry about us and try to keep us informed.” Miss Clark was appreciative of the response and indicated that she would be back at work on Saturday 26 November 2022.
On the same day Miss Clark was informed that she could take time off if she required it. Miss Clark sent through a medical certificate that certified she was unfit for work until 27 November inclusive. The Office Administrator advised Miss Clark that the certificate prevented her return and therefore she should rest up and expected to see her Monday 28 November 2022.
Further text messaging between the two concerned Miss Clark’s view that she could return depending on how she felt, and this view was corrected, then questions followed as to how Miss Clark was feeling. Miss Clark explained her medical symptoms and circumstances surrounding her episode. All of this communication is not unusual, it was pleasant and demonstrative of a mutual trusting relationship.
On 25 November 2022, Miss Clark texted advising she was off to her mother’s residence in Bundaberg so that she was not alone. The Office Administrator pleasantly acknowledged the text.
On 26 November 2022, the Office Administrator enquired how Miss Clark was feeling and the response from Miss Clark was: “I’m ok. Shocked by how I look. I’m coming home Tuesday. I hope I don’t lose my job.??? I look pretty bad!!!”. Photographs were also sent through.
Miss Clark did not return to work on Monday 28 November 2022.
On 29 November 2022, the Office Administrator sent a text with the following: “Hi Lisa, how are you feeling tonight? I hope you are getting some answers. I just want you to concentrate on your health. We just want you to be well so you can come back to work. Don’t worry about your job, it’s waiting for you. Please please please just worry about getting well. Thinking of you, take care.” Miss Clark responded positively.
On 1 December 2022, Miss Clark texted through a medical certificate enquiring when she could return to work. The medical certificate relates to an admission on 1 December 2022 and certifies her unfit for work for 1 and 2 December 2022.
Miss Clark texted another certificate dated 2 December 2022 on the same day from Outpatient Neurology which certified Miss Clark as unfit for duties up to and including 9 December 2022. The correspondence confirmed Miss Clark’s inability to return to work for a further week.
On 3 December 2022, while certified unfit to work Miss Clark sent a pleasant text hoping all were having a good time at the Christmas party and to say hello.
On Monday 5 December 2022, Miss Clark texted an update stating that she forgot to get another certificate and was on her way to Bundaberg, but with her medication she expected to return to work on Saturday 10 December 2022. Later in that same day she again asked if she was returning to work Saturday. The Office Administrator advised that she would confirm the following day. Miss Clark then sent another text stating that if she was unable to return because of her health problems she would need to find another job. She then also states that she had not heard from the directors and stated she was not allowed to come to the Christmas party and accused a co-worker of being rude because she allegedly speaks over Miss Clark. She then proceeded to state that no-one wants her there. The Office Administrator then texted Miss Clark, informing her that she is trying to call her, but Miss Clark insisted on texting. Her next message stated “To tell me I don’t have a job there. Yeah I already know.” The Office Administrator replies with “bullshit”. Miss Clark then proceeds to send a text clearly emotional making a series of allegations.
On 8 December 2022, Miss Clark sends an apology for her outburst earlier in the week and asks if she has a job and states she is returning to the Sunshine Coast on Friday 9 December 2022.
On the evening of 9 December 2022, Miss Clark sends through by text a medical clearance for 10 December which states her medical condition is managed by medication.
On 10 December 2022, around midday Miss Clark and the Director have a discussion which goes for approximately 40 mins to an hour. The detail of the discussion remains in dispute between the parties.
Miss Clark maintains that she was told on 10 December 2022 on the telephone that she did not fit in and that she took too many days off sick. She submits that part of the reason for dismissal included failure to provide medical certificates but notes that she was never requested to submit the certificates.
Miss Clark tendered evidence of her physical injuries arising from the medical episode that required time off work. She states that her employer dismissed her after she was cleared to return to work and that their decision to dismiss her was heartless and hurtful.
Miss Clark further submits that she never had the opportunity to explain her health or her position prior to her termination of employment and the employer possibly assumed she would remain sick without a discussion. She states she was treated unfairly, and she denies hurting the business in any way.[21]
Flair submit that communication was maintained following Miss Clark’s medical episode and her recovery period. It tendered in evidence text and email communications which it submits show that concern for her welfare and support for her return to work.
Flair submits that the text from Miss Clark on 5 December 2022 stated that she thought she needed to look for a new job, however, it states that this perception was not true and they sought to speak to her to discuss her ongoing employment. It tendered the text conversation between Miss Clark and the Office Administrator to that effect.[22]
However, it submits that over time Miss Clark became aggressive in her communications which meant return to work was untenable. In a telephone call between Miss Clark and the Director on 10 December 2022, the Director submits that he explained that no further shifts would be offered. It is submitted that the letter of 19 December 2022 confirmed the conversation held on 10 December 2022. As she was a casual employee, it determined to no longer offer her further shifts.[23]
The letter of 19 December 2022 was submitted in evidence. The letter describes the essential trait of a casual employee is reliability and consistency. It then proceeds to explain that since Miss Clark’s commencement she was neither. Of the 18 shifts allocated to her she only attended 8. The letter then proceeds to describe the correspondence by text and the telephone call was evidence of an irretrievable breakdown in the relationship between Miss Clark, Flair staff and the Director. The letter concludes by stating that as they are entering the busy Christmas period they have advertised her role which means there are no further shifts for her. Other than evidence of a clear dismissal the letter details the concerns regarding cohesion, respect and reliable staff. An analysis of the attendance record does indicate that Miss Clark only attended all of her shifts in two of her seven weeks of employment prior to her medical episode. This shows a sporadic attendance since she commenced employment at Flair. While Flair accepted Miss Clark’s absences following her medical episode there is no explanation for the failure to attend shifts throughout the seven-week period. Nonetheless the letter does provide a reason for the dismissal, being Miss Clark’s unreliability. There is no evidence that the unreliability was due to her medical condition or that Flair considered this when it decided to terminate her employment. The factual circumstances I expect are likely to be contested.
Miss Clark’s communications while they commenced pleasantly did escalate into incomprehensible outbursts. What was actually said during the telephone call is disputed and Miss Clark disputes that the letter of 19 December 2022 reflects what was discussed when she was dismissed. The uncontested evidence is the communication with the Office Administrator on 5 December 2022 which was inappropriate.
The dismissal did not occur until after Miss Clark was cleared to return to work, however, Miss Clark contends that had she not been absent from work her employment would not have been dismissed. The evidence of the unprovoked outburst displayed by Miss Clark may well be the reason for the dismissal, however, the letter of 19 December 2022 does refer to unreliability without specificity which on assessment may give weight to Miss Clark’s merit argument.
On the material before me I cannot make any assessment of the merit. The facts are contentious and the evidence neither supports a meritorious or meritless application. Having considered the submissions and evidence tendered, I cannot make any firm assessment on merit. For these reasons the merit is a neutral consideration.
Fairness between the person and other persons in a like position
Miss Clark describes her personal circumstances and why it was unfair but does not address this consideration in the way intended.
Flair submit that Miss Clark was not treated any differently from any employee that they have or have had in the past. It submits that they showed concern for her, but her aggressive behaviour was a concern for the welfare of other employees which required it to protect them from harassment and other possible workplace disruptions.
This consideration deals with consistent principles in cases of this kind, and given the contentious facts regarding the reasons for dismissal and the requirement that there is consistency in the principles for extension of time, I find this consideration neutral.
Conclusion
In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time having considered each matter above.
I have considered the reason for delay and found that the explanations concerning hardship and stress while understandably difficult for Miss Clark do not weigh in her favour. This is more so as Miss Clark demonstrated capacity to file an application to waive the fee albeit to a wrong email address and functioned daily to attend to her priorities. There was a clear absence of medical evidence to satisfy the requirements concerning exceptional reasons. I did not find that Miss Clark took appropriate action to challenge her dismissal with her employer other than to file her application, although I do note the texts sent to the Office Administrator following receipt of the letter dated 19 December 2022. I found prejudice to be a neutral consideration as well as for merit and fairness between persons in a like position. I have taken into consideration the matters in s.366(2) and I am not satisfied that either individually or collectively that the reasons demonstrate exceptional circumstances to warrant an extension of time. While Miss Clark’s personal circumstances are unfortunate, her reasons for an extension do not meet the required bar.
The application by Miss Clark for the Commission to deal with an extension of time is dismissed.
An order[24] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Miss L.M. Clark on her own behalf.
Mr P. Turner for the Respondent.
Hearing details:
9 March 2023
Melbourne (By Video using Microsoft Teams)
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].
[2] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.
[3] Applicant’s Form F8 at 2.1 and 3.1.
[4] [2011] FWAFB 975, [14].
[5] Ibid, [13].
[6] Applicant’s outline of argument at 1d.
[7] Applicant’s outline of argument at 1d.
[8] Respondent’s outline of argument at “Notes” following 1h.
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[10] Consistent with Rule 14 Fair Work Commission Rules 2013, and she would have received acknowledgement of her application.
[11] Consistent with Rule 14, Fair Work Commission Rules 2013.
[12] Matthew Duncan Hatch v Woodside Energy Ltd[2023] FWCFB 51.
[13] Fair Work Commission Rules 2013 (Cth) r 14(4).
[14] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[15] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[16] Applicant’s outline of Argument at 1e.
[17] Respondent’s outline of argument at 1e.
[18] Applicant’s outline of argument at 1f.
[19] Respondent’s outline of argument at 1g.
[20] Clarke v Service to Youth Council Inc [2013] FCA 1018, [31].
[21] Applicant’s outline of argument at 1i.
[22] Respondent’s outline of argument at 1a.
[23] Response to general protections application, Form F8A at 5.1.
[24] PR760924.
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