Martina Williams v Forrest Marketing Group
[2020] FWC 3116
•18 JUNE 2020
| [2020] FWC 3116 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Martina Williams
v
Forrest Marketing Group
(U2020/6600)
DEPUTY PRESIDENT DEAN | SYDNEY, 18 JUNE 2020 |
Unfair dismissal application – effective date of dismissal - extension of time - application dismissed.
[1] This decision concerns an application by Martina Williams (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. The Applicant had been employed by Forrest Marketing Group (the Respondent) as a casual employee. The remedy she sought by making her application was “to be included in any Job Keeper Payment since losing my job on 27 March 2020”.
[2] The application was listed for hearing on 10 June 2020 to determine two matters. The first matter was the effective date of dismissal. The Applicant claims that her dismissal took effect on 28 April 2020 when she received an email from the Respondent stating her employment had been terminated effective 27 March 2020, being her last day she performed work. The Respondent contends that the Applicant’s casual employment ended on 27 March 2020, having advised her some two weeks’ earlier to look for alternative employment and go to Centrelink to register for JobSeeker, as the business had been significantly affected by COVID-19 and there were no more shifts available for the Applicant. Subject to the date the dismissal took effect, the second matter for determination is whether her application was lodged within the statutory time limit, and if not, whether an extension of time should be granted.
[3] At the hearing, the Applicant appeared on her own behalf. Ms C Wilson, the Respondent’s Commercial Manager, appeared for the Respondent.
When did the dismissal take effect?
[4] A dismissal takes effect when it is communicated to the employee who is being dismissed,1 and can be communicated orally.2
[5] The term ‘dismissed’ for the purposes of the unfair dismissal jurisdiction is defined in s.386 of the Act. Section 386 provides that a person is dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative, or 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.3
[6] A termination at the initiative of the employer involves some action of the employer that is intended to bring the employment relationship to an end, or had that probable result.4
The case for the Applicant
[7] The Applicant did not file a witness statement in the proceedings, instead relying on emails sent to the Commission in response to a request to explain why her application had been made outside the 21 day time limit. In one of those emails, she said the following:
“I believe the reason you are asking for more information is regarding the 21 day deadline, which you believe I missed. But this email I am forwarding should prove that I was not made aware of my termination from the company until 28 April. So from 28 April to 13 May when I lodged my case is within the 21 days. Prior to receiving this email on 28 April, I was not formally advised that my work there had been terminated or that I had been dismissed. On 27 March I received a call from my then current manager Chris Justice stating that there were currently no more shifts for me. But this was normal at FMG as we only received our shifts week to week anyway. Besides myself, I am aware that Chris Justice and Roslyn Hutton have also lodged claims of unfair dismissal from FMG. … I only request that back payment be made to me for the time that is owed to me by FMG via the Job Keeper Government scheme. I still have not been able to find any alternative work.”
[8] The email the Applicant forwarded which is referred to above was an email from Ms Wilson, the Respondent’s Commercial Manager, to the Applicant, dated 28 April 2020, in the following terms:
“Hi Martina
The JobKeeper Payment is a payment made to eligible businesses and not-for-profits affected by the Coronavirus to support them in retaining employees. An eligible employee is an employee who is currently employed and continues to be employed by the eligible employer.
Your employment with FMG was terminated on 27 March 2020. FMG has experienced a significant downturn due to COVID-19 and it is not feasible to re-hire you. Therefore we would not be eligible for the jobkeeper subsidy for you.
Our recommendation remains the same as the advice that you were given by Chris [Justice] on the 27 March; that you should contact Services Australia to seek financial assistance and apply for Jobseeker. Wishing you and your family all the best during this difficult time. Hopefully it all passes soon and we can return to our normal lives.”
[9] The Applicant also relied on a statement from Mr Chris Justice, a former Call Centre Manager with the Respondent, who had been the Applicant’s manager. Mr Justice was not required for cross examination. It was the evidence of Mr Justice that during the week commencing 16 March 2020, he advised all staff that due to COVID-19, the Respondent was o experiencing a downturn in business. He encouraged all staff to “start the process of applying for Centrelink, or securing alternative casual work, as it looked likely FMG would experience a significant downturn”. This message was reinforced by him the following week, and included a statement to the effect that there was limited work available, and it was likely that there would be no shifts for many staff. He noted that this did not reflect on anyone’s performance in their role, as the lack of work was solely due to the downturn resulting from COVID-19.
[10] Mr Justice’s statement also said that he did not advise the Applicant that her employment was “terminated”.
The case for the Respondent
[11] Mr Forrest, the Respondent’s owner and Managing Director gave evidence at the hearing.
[12] He said that on 1 April 2020, he received an email from the Applicant. The subject line of this email was ‘JobKeepers v JobSeekers?’. In it the Applicant wrote:
“I was advised by Chris [Justice] a while ago to register for Centrelink but am only getting around to it now. With the news yesterday I am wondering if you have registered FMG as part of the Job Keepers scheme? This would then determine what I register for, Job Keepers or Job Seekers? A few of us at FMG have asked the same question so I will forward your answer, whatever it is. Thanks a lot and please stay safe”.
[13] He responded to her email the same day as follows:
“Thanks for the email this morning – I hope you are keeping well. The trigger for the Job Keeper allowance is that the company experiences a 30% drop in revenue compared with the same period in the previous year, which right now we don’t meet. That may happen down the track, but I can’t say when and I am still unclear if we are allowed to evaluate this on a month-by-month basis until we meet this criteria. I don’t think it makes any sense to wait and see if/when we qualify for the Job Keeper allowances (it might be end of April, it might be end of May), so I recommend that you register now for Job Seekers with Centrelink, which will give you income now. I want to give you hours with us as soon as we can, but in all honesty I can’t say when this is likely to be. We are still winning some new clients, but we are also losing others. As soon as things change, we will let you know and hopefully you will be able to re-join us at that time.”
[14] The Applicant replied, saying:
“Thanks for the fast reply Richard. Yes I will register for Job Seeker tonight. And yes I hope I can rejoin the team sooner rather than later even if its just for a few hours a day. Funny enough when I worked from home last week I made more appointments per shift than in the office. I know we will all get through this ok...just no idea how long normality will take to set back in. In the meantime take good care and kind regards to Sharon too. See you real soon I hope.”
[15] A witness statement was also provided by Ms Dyan Down, the Respondent’s Business Support Manager. She was not required for cross examination.
[16] Ms Down’s statement said she was responsible for monitoring their clients’ campaign hours, liaising with agents (ie their employees) and managing their availability, including approval of time off requests and shift swapping, rostering agents on campaigns and disseminating the rostered shifts to agents. In addition to this she was responsible for alerting the Call Centre Team Leader when there are no shifts available for casual employees.
[17] On 24 March 2020 she notified Mr Justice that there were no shifts available for a number of casual employees. The Applicant was on that list.
[18] Over the 2 day period of 25 and 26 March 2020, Ms Down stated that Mr Justice spoke to all of the agents on Ms Down’s list, including the Applicant, notifying her that there were no shifts available in the foreseeable future due to the impact of COVID-19 on the business.
[19] On 27 March 2020 the Applicant worked her last rostered shift and was not allocated or rostered on any more shifts.
[20] Ms Down said that the Respondent’s casual employees normally contacted her if they had any questions about their rostered shifts, their availability or when shifts were next available. She said she had not received any correspondence or communication from the Applicant either by phone, in person or by email, asking about future shifts or questioning why she had not been allocated any shifts on the roster since working her last shift on 27 March 2020.
[21] In cross examination, the Applicant acknowledged that she had been advised prior to 27 March 2020 to apply for JobSeeker as there would be limited or no shifts available moving forward. In response to a question from Ms Wilson asking her to confirm she was employed on a casual basis, the Applicant said she was “a regular and systematic casual” who had fixed starting and finishing times, and who had worked 32 hours per week for the past four years. These hours, she said, only varied occasionally in response to changing business needs, and when she had holidays. She also said her roster was emailed to her every Friday.
Effective date of dismissal
[22] Having considered the evidence and submissions before me, I find that the employment relationship ended on 27 March 2020 for the following reasons:
• The Applicant’s evidence confirms she was advised there would be no further shifts in the foreseeable future after 27 March 2020. She acknowledged the Respondent’s advice to her that she should seek alternative work or apply for unemployment benefits with Centrelink (i.e. JobSeeker);
• She knew not to attend work after last shift on 27 March 2020, and she did not make enquiries as to her next shift, despite her view that she was employed on a regular and systematic basis;
• the email exchange between the Applicant and Mr Forrest on 1 April 2020 makes it clear that she was advised to go to Centrelink and apply for the JobSeeker payment. The term ‘re-join’ used in the exchange by both the Applicant and Mr Forrest demonstrates in my view that the Applicant was aware the employment had ended by that time;
• While the word ‘terminate’ may not have been used in discussions with the Applicant prior to her last shift, it is clear in my view that the Applicant was advised that there were no further shifts available for her and that she should seek alternative employment or the JobSeeker payment. I am satisfied that this constituted action by the Respondent that was intended to bring the employment relationship to an end, or had that probable result.
• I do not accept the Applicant’s contention that her dismissal took effect on 28 April 2020 when she received the email correspondence from Ms Wilson in which reference was made to the termination of her employment on 27 March 2020. The email correspondence was consistent with the earlier advice to the Applicant that there were no shifts available as a result of the downturn in business, and was in response to multiple requests by her for the JobKeeper payment.
[23] It follows and I find that the effective date of dismissal was 27 March 2020. As the application was filed on 13 May 2020, her application has not been made within the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether the Applicant should be granted an extension of time.
Extension of time
[24] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 5 Exceptional circumstances may 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 can be considered exceptional.6
[25] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[26] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Reason for the delay
[27] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 7
[28] The Applicant contended that her application was not late because she did not become aware of her dismissal until 28 April 2020. For the reasons set out earlier, I do not accept that the dismissal took effect on this date. There were no other reasons as to the delay advanced by the Applicant. This weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[29] The Applicant gave evidence that she did not become aware of the dismissal until 28 April 2020. While I do not accept that her dismissal took effect on this date for the reasons outlined above, I will treat this as a neutral consideration.
Action taken to dispute the dismissal
[30] Other than making this application, the Applicant did not take any other steps that would constitute ‘action to dispute the dismissal’. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
[31] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[32] The Act requires me to take into account the merits of the application in considering whether to extend time.
[33] In this case, the Respondent contends that the dismissal was due to a downturn in business resulting from COVID-19. The Applicant did not dispute that the business was affected by COVID-19, but said that the dismissal was harsh because other casuals had continued to be employed.
[34] It appears on the material that the Respondent has a reasonable explanation for the Applicant’s dismissal, being a significant downturn in business due to COVID-19. In the circumstances, I consider the Applicant’s merits case is not strong. Consequently, this is a matter that weighs against a conclusion that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
[35] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
[36] In the present case, the Applicant said that another employee in similar circumstances had also been dismissed, and I note that the other employee referred to has also made an application for an unfair dismissal remedy. Overall, I consider this to be a neutral consideration in the present matter.
Conclusion
[37] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
M Williams on her own behalf.
C Wilson for Forrest Marketing Group.
Hearing details:
2020.
Sydney (by telephone):
June 10.
Printed by authority of the Commonwealth Government Printer
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1 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, 21 November 2000) print T3496.
2 Plaksa v Rail Corporation NSW[2007] AIRC 333.
3 Section 386 of the Act.
4 Searle v Moly Mines Limited [2008] AIRCFB 1088 at para 2.
5 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
6 Ibid.
7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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