Maria Rico v Airlinx Heating And Cooling Supply Pty Ltd
[2024] FWC 32
•5 JANUARY 2024
| [2024] FWC 32 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Maria Rico
v
Airlinx Heating And Cooling Supply Pty Ltd
(C2023/6540)
| COMMISSIONER PERICA | MELBOURNE, 5 JANUARY 2024 |
Application to deal with contraventions involving dismissal Application to deal with contraventions involving dismissal
On 23 October 2023, Ms. Maria Rico (the Applicant) made an application to the Fair Work Commission under s 365 of the Fair Work Act2009 (Cth) (the Act) alleging she was dismissed from her employment with Airlinx Heating And Cooling Supply Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.
The information provided in the application and in the employer response form lodged by the Respondent indicates the application was made out of time. The Respondent also alleges in its Form F8A response the Applicant was not dismissed.
The Commission’s powers to deal with a dismissal dispute under s 368 of the Act are subject to the determination of any jurisdictional issues. One of the jurisdictional issues is whether the application was made in time or whether an extension of time should be granted under s 366.
A mention hearing was conducted on 14 November 2023. Directions were then issued to provide both parties with an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The Commission held a determinative conference on the jurisdictional objections and the extension of time by Microsoft Teams from 10:00 AM on 28 December 2023. The Applicant appeared and gave evidence on oath. The Respondent was represented by Ms. Joanne Xia, who also gave evidence on oath.
When must an application for the Commission to deal with a dispute be made?
Section 366(1) of the Act provides:
(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).
The application was made on 23 October 2023.
When did the alleged dismissal take effect?
It is not contested the alleged dismissal took effect on 13 September 2023.
Was the application made within 21 days after the alleged dismissal took effect?
As the Full Bench has stated, “[t]he 21-day period prescribed… does not include the day on which the dismissal took effect”.[1]
The alleged dismissal took effect on 13 September 2023. The final day of the 21-day period was therefore 4 October 2023 and ended at midnight on that day. The application was made on 23 October 2023. The application was made 19 days late. The application cannot proceed unless the Commission is satisfied that there are exceptional circumstances as elaborated in s 366(2).
Was the application made within such further period as the Commission allows?
Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
The Full Bench in Nulty v Blue Star Group Pty Ltd [3] (Nulty) held that 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.”[4]
What follows is my consideration of the factors in s 366 individually and then collectively applying the meaning of exceptional circumstances described in Nulty.
Reason for the delay
For the application to have been made within 21 days after the alleged dismissal took effect, it needed to have been made by midnight on 4 October 2023. The delay is the period commencing immediately after that time until 23 October 2023, a period of 19 days, although circumstances arising prior to that delay may be relevant to the reason for the delay.[5]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[7]
Applicant’s submissions on the reason for delay
In her Form F8 application, the Applicant made these submissions on reason for delay:
“The reason for the delay was that I was not sure if I could make a claim. I contacted Fair Work Australia and was referred to Fair Work Commission. I was then advised I could seek free legal advice and decided to do this before making an application so that I knew for certain as to whether or not I could make a claim. Unfortunately, due to waiting times between each of the three parties I went past the 21 Days.”
In her submissions, the Applicant gave the following reasons:
“As previously stated, I first contacted Fair Work Australia by phone and was told to contact The Fair Work Commission. I do not have the date that I made the phone call initially to Fair Work however I then proceeded to email the Fair Work Commission on Monday 2" October. Please see email of webform request.
Following their response, I made a request to use the Workplace Advice Service that was held on the 12/10/2023. Hereby I was made aware of the General Protections Act. Upon the lawyer's advice I took the time to read through the General Protections Act to clarify if my claim would be worthy of submitting. And submitted my application on the 23/10/2023.”
In her evidence on 28 December 2023, the Applicant gave sworn evidence of the following:
· She could not give the date at which she contacted “Fair Work Australia”;
· When asked why she took until 2 October 2023 to contact the Fair Work Commission to enquire about commencing a proceeding, she stated words to the effect that she was not sure she had a case. It should be noted that as part of the material she relies upon, a “Webform Submission e-mail” from the Fair Work Commission dated 2 October 2023 at 5:36PM notes in its text that “there is a 21 day time limit for lodging a dismissal application”; and
· The Applicant took no further steps until her appointment with the Workplace Advice Service on 12 October 2023, some eight days after the time limit for filing her application. In her evidence, she acknowledged during that meeting she was informed of the time limits for making a s 365 application.
She also gave a further reason for the delay which was not raised in her application or any the 32 pages of material she filed in this matter, that was: “my partner fractured his back, he had mental health issues including suicidal ideation and we rang a hotline.”
Respondent’s submissions on reason for delay
The Respondent argues that none of these reasons provide exceptional circumstances and makes the following submissions on the Applicant’s reasons:
“It seems the Applicant contacted the Workplace Advice Service on Tuesday 3 October at 5:28 PM and obtained a Workplace Advice Service appointment for 12 October. However, the Applicant would have been aware, or should have been aware, that 12 October 2023 was outside the 21-day deadline. The Fair Work Commission website is very clear on that deadline.
In the Respondent’s submission, it is inconceivable that lawyer did not tell the Applicant on 12 October 2023 about the 21 days within which she should have filed and served her Form F8. In any event, the next earliest possible time the Applicant had to get her Form F8 in (albeit late) was on 12 October, and it is inconceivable that lawyer did not tell the Applicant to immediately file and serve even a “holding” Form F8. 12 October 2023 was already out of time and the Applicant took no steps to tell the Respondent she was contesting the (alleged) dismissal or file a Form F8 at that time.
….
The Respondent submits there is simply no credible explanation for the entirety of the delay and that this weighs against granting the extension of time sought by the Applicant. We submit that this factor should be given significant weight.”
Consideration
Ignorance of the law and delay in obtaining legal advice are not reasons for delay that can be considered exceptional circumstances. They are commonplace and routine.
The Applicant, in oral evidence, stated that she did not know whether she had a case. She gave this as the reason why her first real contact with the Workplace Advice Service was on 2 October 2023, two days prior to the expiration of the time limit for filing her application. The e-mail she received from the Commission on 2 October 2023 following this first consultation should have alerted her to the 21-day time limit.
She did not precisely explain why she took no further action between the date of the initial conversation on 2 October 2023 and the appointment with the Workplace Advice Service on 12 October 2023. She acknowledges she was informed of the 21-day deadline at that appointment, which by then had expired eight days previously. Nonetheless, she took a further 11 days to file her application.
She attributed the delay to having to assist her husband who had injured his back, experienced mental health issues and as a result needed to contact a helpline. This was first raised in her oral evidence on the day of the determinative conference on 28 December 2023, which makes this evidence difficult to deal with. The manner in which it was adduced prevented the Respondent from making adequate submissions on it, or to cross examine on that evidence.
While the medical and mental health issues of the Applicants husband could have constituted exceptional circumstances, the Applicant did not elaborate how those circumstances lead to any part of the delay. She did not articulate how her husband’s medical issues affected her ability to comply with the time limit or how it lead to the gaps between the initial consultation with Fair Work Commission on 2 October 2023 and the appointment with the Workplace Advice Service on 12 October 2023, nor did she give evidence of how it lead to the further delay of 11 days between the consultation with Workplace Advice Service and the filing of the application on 23 September 2023.
In those circumstances, without evidence as to how her husband’s medical issue led to any part of the delay, the remaining reasons are ignorance of the law and the delay in receiving legal advice as the reasons for the delay. As for ignorance of the law, it is clear from her own evidence that she received an email warning her of the 21-day deadline on 2 October 2023. She was informed again of the time limit by the Workplace Advice Service on 12 October 2023, 29 days from the date of her alleged dismissal. In neither case did that advice lead to any urgency on the part of the Applicant.
This factor therefore counts against a finding of exceptional circumstances.
Action taken by the Applicant to dispute the alleged dismissal.
The Applicant concedes in the 40 days between her alleged dismissal on 13 September and the filing of her application on 23 October 2023, she took no action to dispute the alleged dismissal. The Applicant explained in her oral evidence “I did not know I could contest the dismissal.”
The Respondent confirms that no attempts were made to contact her to contest the alleged dismissal.
The fact that for 40 days the alleged dismissal was not contested counts as a factor against a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent claimed in her oral evidence the 19-day delay in filing the application led to relevant conversations between herself and the Applicant dimming in her memory. The Applicant refutes this evidence.
I find that a delay of this magnitude would not lead to the prejudice claimed by the Respondent. Furthermore, it did not impede Ms. Xia from filing text message material, an outline of submissions, a comprehensive witness statement, tables of absenteeism and lateness and other documents relevant to the case.
In the circumstances I find that there is little prejudice to the Respondent caused by the delay, which counts as a factor in favour of finding of exceptional circumstances.
Merits of the application
Applicants’ submissions
In her application, the Applicant claimed that she was discriminated against and was dismissed for her “unexpected medical condition”, which, in her sworn evidence, she disclosed to the Respondent in a telephone conversation on 4 September 2023.
She also claims to have been discriminated against and was dismissed because of absenteeism caused by her family responsibilities.
The Applicant also submits that a text conversation she had with Ms. Xia of the Respondent on 13 September 2023 supports an argument she was dismissed.
Respondent’s submissions
The Respondent claims that the text conversation on 13 September 2023 was either a mutual decision to end the employment relationship, or a resignation. It asserts it was not a dismissal.
In relation to the allegations of the “unexpected medical condition and the absence of the Applicant absenteeism and the medical appointment on 13 September”:
“The issue was the continued absenteeism and lateness of the Applicant. On the 13 September the Applicant had told me she would attend the office and then go to her medical appointment and she did not do this I could no longer tolerate all the past lateness and non-attendance (without medical certificates or that were not personal/carer's leave). I accept that her later medical certificate then covered her for that day, Otherwise, there is no allegation here that her (alleged) dismissal was in contravention of a general protection.”
In relation to the lateness claim, the Respondent stated in its Form F8A response:
“We already had accommodated the Applicant with a later starting time and allowed her to bring her children to work with her when she needed to do that. Despite this she was continually late, which was the real issue. Other employees make plans based on the Applicant's hours of work also when the Applicant is so unreliable it affects others. And on one occasion even worked for her other employer when they asked her for extra hours and did not come to work with us as she has agreed to do. She regularly started work around 10 am when we had already agreed to a later start of 9.30. That was the issue as I said to her in my text message. She continually gave us excuses like the road was blocked, the traffic was bad, there was a traffic accident, "Sorry Joanne, I had every attention to come in today ... ". Or it was just late, "Sorry I am running a little late this morning" and "I maybe late again sorry" or she had to leave early- 3 times in February alone. See SMS screen shot attached. In fact, she was late on her very first day of work and it continued from there. Every month she was late several times.
This is the real issue, not August and not medical leave. I had lost confidence in her ability to meet the basic requirements of the job a view I had formed earlier and was concerned about our busy period, which is now and had no confidence the Applicant would be at work on time for this period. What the Applicant states in her Form F8 in section 3.3.5, that she worked for5-6 months with no issue, is completely incorrect. She was so unreliable with her start and finish times (or even working for her other employer over us) when she was well, I lost all confidence in her and could not see her being able to do the job as required when we really needed her. It is not the point that she might offer to work extra hours every now and then. The job required was for a set start (made later to accommodate her) and finish time so that others could then plan their work/lives.”
In support of the lateness claim, the Respondent a filed five-page table headed “Maria’s attendance sheet” which had the Applicant’s attendance record for the period from 2 February 2023 until 13 September 2023.[8] That table discloses 79 instances of either late arrivals or early departures during that seven-month period. In her oral evidence, the Applicant did not directly refute this document but either tried to point out days in which she stayed late or sought to explain why she was late on particular days.
In relation to the claim she was dismissed by reason of her family responsibilities, the Respondent argued:
“The Applicant has alleged has had limited help regarding the care of her children, but help regarding the care of her children is not a general protection and, in fact, the Respondent gave her time off for this and also allowed her to bring her children to work. Again, there is no allegation here that her (alleged) dismissal was in contravention of a general protection.”
The text conversation that led to the cessation of employment
The Respondent filed a record of the following text message exchange between the Applicant and Ms. Xia:
Maria Rico
Hi, it's Sam, Maria's partner
Sorry I don't think Maria will be in today, she got news late yesterday that she needs to go for lots of thorough testing later today at Monash and I don't think she is capable of coming into work, she is very stressed out
Thanks for being understanding, one of us will be in contact later
Joanne Xia
It's been the last minute notice for some times. Maria please let me know that you are unable to take this job any longer. I was expecting you are coming and booked Chiropractics clinic this morning. Work has been left behind. Please give me a call in the afternoon when you have a chance. I need to figure out what to do. Regards
Maria Rico
Sorry Joanne, I had every attention to come in today then go to my test.
Sam saw I was really struggling and got the kids ready and did drop offs etc so I could rest and advised you I wasn't in the state to attend as I'm very stressed.
I understand this has mucked you up. The last month I've been concerned about my health and am hoping to get some answers today. But if you think it best to end my contract then that is fine.
(The Applicant then attached two screenshots of a medical certificate.)
Sorry Joanne, I am not home yet. Please see attached medical certificates. Happy to give you a call tomorrow. Please let me know what you decide.
Joanne Xia
Hi Maria, I'm just off line with Telstra. From 2.30pm today, I've been on the phone with Telstra. Still at work to finish off some thing for today.
Yes, we have to stop here. I can't not see your hours can be maintained. A lot of times you started around 10am. I had not had any staff started 9.30am before you. Now it's 10am normal. There's no chance to back up Rebecca or myself if she or me need to be away for a week. I will forward you medical certificate to Peter. Kind regards Joanne
Consideration on the merits
No dismissal
The plain English of the text conversation can only lead to a finding that the Applicant was dismissed. I find the words “but if you think it best to end my contract that is fine” mean the Applicant was comfortable for the Respondent to decide to end the contract. This is reinforced by the next message which reads “please let me know what you (meaning Ms Xia) decide”, which again supports an interpretation that the Applicant is waiting for a decision by the Respondent to end the contract. The act of termination following those messages occurred by the text which read: “Yes, we have to stop here.” I therefore find that there was a termination of employment at the initiative of the employer in this case.
Operative Reason
On the merits of the Applicant’s claim the decision to dismiss included discrimination on the basis of illness or family responsibilities, there is enough evidence to reach a view that the Respondent would likely meet its onus of proving the Applicant was not dismissed for these reasons.
There is sufficient evidence to find she was frequently absent from work for various reasons and had difficulties throughout her employment attending during work hours, even after her hours were varied to meet her family responsibilities. The Respondent claims the decision to end her employment relationship was related to absenteeism and lateness that occurred from February 2023.
On the evidence I find the Applicant was dismissed but that she is unlikely to succeed in a claim that she was dismissed for her family responsibilities or her unexpected “health scare”.
In those circumstances, on an analysis of the material before me, I find the merits of this case are negative to a finding of exceptional circumstances.
Fairness as between the person and other persons in a like position
None of the filed materials addressed this issue. It follows it is a neutral factor in a determination of whether “exceptional circumstances” exist for the purposes of s 366.
Conclusion
On the basis of these reasons, I conclude:
· Section 366(2)(a): The reasons for delay count against a finding of exceptional circumstances.
· Section 366(2)(b): The Applicant took no steps during the 40 days between her dismissal and the filing of the application to dispute her dismissal. This counts against finding of exceptional circumstances.
· Section 366(2)(c): The Respondent suffered no material prejudice by reason of the 19-day delay. This counts in favour of a finding of exceptional circumstances
· Section 366(2)(d): The merits on the material before me are against a finding of exceptional circumstances. It is clear she was dismissed but the evidence supports a view the operative reasons for her dismissal were other than those claimed by the Applicant.
· Section 366(2)(e): No submissions were made on the relative fairness ground, and it is therefore neutral to a finding of exceptional circumstances.
It follows that ss 366(2)(a), (b), and (d) count against a finding of exceptional circumstances, s 366(2)(c) counts in favour and s 366(2)(e) is neutral. On that basis, the balance of factors counts against a finding of exceptional circumstances.
I am therefore not satisfied, after a consideration of all the factors in s 366(2), there are exceptional circumstances sufficient to allow an extension of time for the filing of the Application and the application is dismissed.
COMMISSIONER
Appearances:
Ms. Maria Rico, the Applicant, for herself.
Ms. Joanne Xia appeared for the Respondent.
Hearing details:
28 December 2023
Microsoft Teams
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] [2011] FWAFB 975.
[4] Ibid at [13].
[5] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[8] DCB at pp. 50 to 54.
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