Makda Fissha v McDonald's Rockbank Outbound

[2017] FWC 3636

[2017] FWC 3636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Makda Fissha
v
McDonald’s Rockbank Outbound
(C2017/2860)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 10 JULY 2017

Application to deal with contraventions involving dismissal - whether to extend time for lodging the application.

[1] On 29 May 2017 Ms Makda Fissha (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is McDonald’s Rockback Outbound (Respondent) (McDonald’s).

[2] Ms Fissha advised that she commenced employment with McDonald’s on 6 March 2017. She says that she was dismissed on 24 April 2017 and the dismissal took effect on that day. 1

[3] The application therefore was lodged 14 days out of time.

[4] For the reasons set out below I have 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.

Alleged Contravention

[5] Ms Fissha submits that she was dismissed for no reason and was not rostered on or given any shifts after she was employed. A breach of s.358 is alleged. 2

Respondent’s Submissions

[6] McDonald’s submits that Ms Fissha was never employed, instead an offer of employment that had been made to her was withdrawn as it was not accepted by Ms Fissha in over a month. 3

Legislative scheme

[7] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) The application 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).

[8] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 4where 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]

[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[11] The onus of establishing exceptional circumstances is on Ms Fissha who needs to provide a credible reason for the whole of the period that the application was delayed. 5

[12] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 6 which, although concerned with an unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

Background

[13] On 9 June 2017, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 7 July 2017.

[14] Ms Fissha appeared on her own behalf. Ms Emine Akbasak and Ms Joanne Westover appeared on behalf of McDonald’s.

Matters to be taken into account pursuant to s.366(2)

[15] 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

[16] Ms Fissha submits that she was not aware of the Commission or of her ability to lodge an application. 7 She further submits that she was not aware of the termination and did not realise that McDonald’s had suggested she had withdrawn her application.8

[17] Ignorance of the statutory time limit for lodgement is not an exceptional circumstance and does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time. 9

[18] The above analysis does not point to the existence of exceptional circumstances.

[19] This factor weighs against considering whether to exercise the discretion to allow a further period for the Applicant to lodge her application.

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

[20] Ms Fissha submits that she tried to contact the employer numerous times in an attempt to dispute the dismissal, however was unable to speak to them. 10

[21] Ms Fissha was unable to provide any evidence of the dates and times that she had made these calls and was vague as to the details of which phone she had used to do so, who she spoke to and when she had spoken to them. Ms Fissha also gave varying evidence as to why she was unable to provide evidence of these calls, initially submitting that the call log of her mobile phone had been cleared and later that she had not made the calls from her own phone but from her mother’s.

[22] McDonald’s submits that Ms Fissha was not dismissed, and further that she did not take any steps to dispute the alleged dismissal. 11

[23] It was Ms Westover’s contention that the McDonald’s phone was only answered by the managers, and that neither of the managers had received calls from Ms Fissha.

[24] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 12 I was not persuaded by Ms Fissha’s evidence, therefore this factor weighs against granting a further period for Ms Fissha to lodge her application.

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

[25] Prejudice to the employer will go against the granting of an extension of time.¹³ Ms Fissha submits that there was no prejudice to the employer as they had ‘failed to meet proper precautions in preventing miscommunications’. 14

[26] McDonald’s did not submit that there was any prejudice to it if an extension of time were granted. 15

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

(d) Merits of the application

[28] Neither Ms Fissha’s written submissions nor her evidence given during the hearing directly addressed this criterion. Ms Fissha submits that she commenced employment with McDonald’s on 6 March 2017 however was not rostered on for any shifts. 16

[29] She submits that on 24 April 2017, she received an automated email from McDonald’s online platform, ‘Metime’, advising that she had withdrawn her application despite the fact that she had attempted to contact the employer numerous times. 17

[30] McDonald’s submits that Ms Fissha was never employed by them and was not dismissed, but that instead an offer of employment was made to her on 6 March 2017 via Metime. They submit that this offer was withdrawn on 24 April 2017 as it had not been accepted by Ms Fissha. 18

[31] Ms Fissha submits that she was unable to access her Metime account and instead had tried to contact the employer directly. She submits that she left her contact details at the store but did not receive any contact from the employer. 19

[32] Ms Westover’s oral evidence was that there may have been some confusion as Ms Fissha had submitted her job application to McDonald’s under the name of ‘Makdalina Kahsay’ however her communications with McDonald’s were made under the name ‘Makda Fissha’.

[33] McDonald’s submits that an ample amount of time was provided for Ms Fissha to accept the job offer before the offer of employment was withdrawn. They submit that it was unrealistic for the business to have to leave a job offer open endlessly without filling the position. 20

[34] They submit that Ms Fissha was never an employee of the company and as such had not been dismissed. 21

[35] The Commission is not required to make a determination that an Applicant has been dismissed before holding a conference under section 368 of the Act. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1. 22

[36] The Commission notes that, for the purpose of determining whether to grant an extension of time to the Applicant to file her application, it “should not embark on a detailed consideration of the substantive case.”²³

[37] Other than raising the issue of whether it was fair for the employer to withdraw their offer of employment, Ms Fissha’s submission and evidence did not identify a workplace right she had, or had exercised, or had proposed to exercise which is relevant to the application.

[38] Ms Fissha’s application alleged a breach of section 358 of the Act, regarding dismissal to engage as an independent contractor, however did not provide any submissions in support of this allegation. 24

[39] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 25 However, the Commission cannot make any findings on contested matters without hearing evidence.

[40] Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application. 26 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

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

[41] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 27 However, there were no submissions that there is, or has been, any persons in a similar position to Ms Fissha. I find this criterion neutral.

Conclusion

[42] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[43] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 28

[44] Having considered all of the factors set out in s.366(2), 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). Accordingly, the application is dismissed.

[45] An order 29 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

M. Fissha for the Applicant;

E. Akbasak and J. Westover for the Respondent.

Hearing details:

2017

7 July (Telephone hearing).

 1   F8

 2   Ibid

 3 F8A

 4   [2011] FWAFB 975

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

 6   [2016] FWCFB 349

 7   Exhibit A1

 8   F8

 9   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]; Rose v BMD Constructions Pty Ltd[2011] FWA 673 at [11]

 10   Exhibit A1

 11   Exhibit R1

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

13 Ibid

 14   Exhibit A1

 15   Exhibit R1

 16   F8

 17   Ibid

 18 F8A

 19   Exhibit A1

 20   Exhibit R1

 21 F8A

 22   Hewitt v Topero Nominees Pty Ltd t/a Michaels Camera Video Digital [2013] FWCFB 6321 at [50]

23 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]

 24   F8

 25   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 26   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]

 27   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 28   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 29   PR594433

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