Mary Jane Caruana v Dome Phed Pty Ltd
[2023] FWC 2698
•15 NOVEMBER 2023
| [2023] FWC 2698 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mary Jane Caruana
v
Dome Phed Pty Ltd
(U2023/7397)
| COMMISSIONER LIM | PERTH, 15 NOVEMBER 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – abandonment of employment – potential out of time issue
Introduction
Ms Mary Jane Caruana (Applicant or Ms Caruana) has applied to the Fair Work Commission to seek a remedy for an alleged unfair dismissal under the Fair Work Act 2009. The Respondent in this matter is Ms Caruana’s former employer, Dome Phed Pty Ltd (Respondent or Dome).
The parties do not agree when the employment relationship ended and in what circumstances. Ms Caruana submits that Dome dismissed her on 20 July 2023. Dome argues that Ms Caruana abandoned her employment on either 16 May 2023 or 6 June 2023. If Dome is correct on the date, Ms Caruana’s application is outside the statutory timeframe for filing.
It is uncontroversial that where a matter involves an out of time issue and jurisdictional objection, the Commission must resolve the out of time issue first.[1]
In this matter the disputed out of time issue and jurisdictional objection of who ended the employment relationship are intertwined. To understand whether this application requires an extension of time, I must determine when the employment relationship ended. Critically tied up in this is the question of how the employment relationship ended.
The Respondent initially raised a further jurisdictional objection on the basis that Ms Caruana had not served the minimum employment period. However, the Respondent withdrew this objection at the hearing.
The matter was allocated to my Chambers on 12 September 2023. I conducted a mention on 14 September 2023, and a hearing was conducted via MS Teams on 17 October 2023.
Both parties sought leave to be represented by a lawyer. I was satisfied per s 596(2)(a) that granting leave would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Accordingly, I exercised my discretion to grant leave for both parties to be represented by a lawyer.
Having considered the parties’ evidence, I find that the employment relationship ended on 20 July 2023. Accordingly, Ms Caruana lodged her application within time. I further find that Ms Caruana did not abandon her employment.
Detailed reasons for my decision follow.
Observations on the evidence
Ms Caruana is a migrant from the Philippines. I granted Ms Caruana’s request for a Tagalog translator. The Respondent’s representative took issue with this during cross-examination, on the basis that Ms Caruana is conversationally fluent in English. This was an incorrect position to take. Ms Caruana does not have the same English ability as a native speaker, and the Fair Work Commission must perform its functions in a manner that is fair and just.
I have taken into consideration that Ms Caruana is not a native English speaker when assessing her evidence. I find that Ms Caruana gave her evidence earnestly. Her evidence did not deviate appreciably under cross-examination.
Ms Gabriella Pezzuto is the Café Manager at Dome Port Hedland. She has worked for Dome since 2002. I found Ms Pezzuto to be an honest witness, even when that evidence may not have been beneficial for Dome’s case. She gave her evidence in a straight-forward and consistent manner.
Mr Stephen Evans is the Assistant Café Manager at Dome Port Hedland. He has been employed with Dome since September 2019. Mr Evans’ evidence was short and corroborated Ms Pezzuto’s evidence of the conversation that took place on 26 April 2023. I find that he gave his evidence honestly.
The events that led to this application
The Respondent is a chain of cafes based in Western Australia.
Ms Caruana first began employment with the Respondent at its franchise in Port Hedland, Western Australia, on or around 12 December 2016. Ms Caruana performed front of house and back of house duties on a part-time basis.
In late 2022, Ms Caruana scheduled surgery for a liver cyst. Ms Caruana’s evidence is that she told her employer of her condition, as she had to seek medical treatment from time to time. The Respondent did not challenge this evidence.
Ms Caruana took annual leave in September for her liver issues. She had her surgery in Perth on 22 October 2022.
Ms Pezzuto’s evidence is that the Respondent approved Ms Caruana’s annual leave from 13 September 2022 until 26 September 2022. However, Ms Caruana did not return to work until 27 December 2022. Ms Caruana did not challenge this.
When Ms Caruana returned to work on 27 December 2022, there was no break in her employment continuity. In the start of January 2023, Ms Caruana signed an individual flexibility agreement.
In early April 2023, Ms Caruana booked annual leave from 1 May 2023 to 15 May 2023. The purpose of the leave was to attend a consult with an ophthalmologist for eye surgery. As I understood Ms Caruana’s evidence, she was hoping to also have the surgery in the Philippines during this time.
On 26 April 2023, Ms Caruana spoke to Ms Pezzuto to ask for an extension of her annual leave by another two weeks. Mr Evans was present for that discussion.
Ms Caruana’s evidence is that:
She asked for the extension so that her eyes could be checked post-surgery.
Ms Pezzuto told her that she would speak to her boss, as they would have to reschedule training in the kitchen for an upcoming roll-out of a new menu.
Ms Pezzuto said that she would ask her superior if the two-week extension could be paid as annual leave.
She told Ms Pezzuto that it was fine if the extension was unpaid leave, as she needed to go to the Philippines for the eye surgery to improve her vision and health.
Ms Caruana’s evidence is that Ms Pezzuto agreed with the request and told her that she had to return to work on 3 June 2023, or she would be replaced.
Ms Pezzuto’s evidence of the conversation is that:
Ms Caruana informed her that she had booked flights to the Philippines and wanted to extend her leave for another two weeks.
She told Ms Caruana that she would not approve this request as it would be a busy period due to the launch of a new menu.
Ms Caruana said to her that she would be going away anyway.
She told Ms Caruana that if she did not return, someone else would be employed to fill her position as the kitchen would be short-staffed.
Mr Evans’ evidence corroborated Ms Pezzuto’s account of the conversation on 26 March.
During cross-examination, Ms Pezzuto gave the following further evidence of the conversation:
Ms Caruana had also said words to the effect of, “the flights are booked, I’m going anyway”, during the discussion.
Ms Pezzuto had told Ms Caruana that her request for additional leave would not be approved.
Ms Pezzuto had raised the issue of Ms Caruana seeking an additional two weeks’ leave and her response to that request with her Operations Coach at a regular scheduled meeting shortly after the discussion on 26 March 2023. Her Operations Coach agreed with her approach.
I accept Ms Pezzuto’s and Mr Evans’ evidence.
Ms Caruana commenced her annual leave on 1 May 2023 and flew out to the Philippines that day. She saw an ophthalmologist on 11 May 2023.
During cross-examination, Ms Caruana said that she had not booked the appointment prior to leaving Australia.
Further, Ms Caruana’s gave evidence that the doctor told her the earliest available date for an operation was in three weeks’ time, and she would require a few weeks after surgery to recover. Ms Caruana chose not to go ahead with the operation as she intended to return to Australia on 2 June 2023 and did not feel that there was enough time to recover.
A factor in Ms Caruana’s decision not to continue with the surgery in the Philippines is that she had booked the same eye surgery with a doctor in Port Hedland. The surgery was scheduled for 7 July 2023, and had been booked a year in advance.
The parties agree that from 22 May to 3 June 2023, there was no contact initiated by either Ms Caruana or Dome.
During cross-examination, Ms Pezzuto gave evidence that she knew Ms Caruana would not be returning on 16 May 2023. Ms Pezzuto said that she had factored this in while rostering staff for May 2023. Her evidence was that even though she had not approved Ms Caruana’s absence, she still had to run the daily operations of the café.
Ms Caruana returned to Australia on 2 June 2023. On 3 June 2023, she sent the following message to Ms Pezzuto:
“Good morning Gabi, [h]ope you’re doing good. I’m back. If you need me tomorrow I can start tomorrow. I’ll might chat you there today if you’re not busy”.
Ms Pezutto’s reply shortly after was:
“Hi Mj. Can you come in on Tuesday for a chat. Busy weekend and public holiday Monday so not a good time to talk. Thanks”.
On 6 June 2023, Ms Caruana and Ms Pezutto met at Dome Port Hedland. Ms Caruana’s evidence is that at this meeting, Ms Pezutto informed her that she could not roster her on for 38 hours per week and would only be able to provide her with short hours if she wanted to work. Ms Caruana says that she told Ms Pezutto that this would be fine, and that Ms Pezutto said that she would create a new roster next week and roster Ms Caruana on for a few hours.
Ms Caruana’s evidence is that she told Ms Pezzuto that she was ready to work, and asked if Ms Pezzuto could inform her when she had completed the roster for next week. According to Ms Caruana, Ms Pezzuto agreed.
Ms Pezzuto’s evidence is that she reminded Ms Caruana that she had previously warned her that if she went on unapproved leave, she would employ someone to fill Ms Caruana’s position.
Ms Pezzuto also raised with Ms Caruana that this was not the first time Ms Caruana had been absent and had not returned to work as agreed. Ms Pezzuto’s evidence is that Ms Caruana accepted this and indicated that she would start looking for another job.
Ms Pezzuto in cross-examination gave evidence that during this conversation she did not tell Ms Caruana that her employment had ended. Ms Pezzuto also gave evidence that after the conversation she hadn’t thought about whether Ms Caruana was still an employee. Ms Pezzuto’s clear focus was on communicating to Ms Caruana that her conduct had been unacceptable.
Ms Pezzuto gave further evidence in cross-examination and re-examination that:
She has the authority to hire employees, but not fire. However, she does process resignations and actions them to the Respondent’s HR department.
If she had decided to end Ms Caruana’s employment, she would have referred it to Dome’s HR.
The Dome employee management system records employees as effectively ‘active’ or ‘inactive’. This is how Dome knows who is available to be rostered on. When someone resigns or is terminated, they are removed from the employee list entirely.
People who go on leave are classified as ‘inactive’.
Ms Caruana was classified as ‘inactive’ when she went on annual leave. Ms Caruana remained on the inactive employee list until 20 July 2023.
At the Port Hedland franchise, it can be difficult to hire new staff. There are several reasons for this, such as the limited accommodation available in town. As a result, a large majority of the employees are transient workers such as backpackers.
Ms Pezzuto prefers to keep on good employees, especially if they have accommodation in town. This means that she is sometimes more lenient when managing staff.
From 10 June 2023 onwards, Ms Caruana started working in a series of different casual roles to ensure that she had income.
From 7 June 2023 until 17 July 2023, there was no further communication between Ms Caruana and Dome.
On 17 July 2023, Ms Caruana sent the below email to Dome HR:
“Dear Ma’am,
Good morning, this is Mary Jane Caruana short as Mj, I am just wondering where to ask a question regarding my problem about my roster, I am staff at dome Port Hedland since 2016 until now and I went to see a Doctor in my country 2 months ago so I use my annual leave, I spoked to my manager before I left that I can extend my holiday to two weeks more and she agreed as long as I come back on the date that I promise or she gonna replace me. Now the problem is when I came back she said that there is no roster for me and she said that she gonna contact me if there is a roster made, I came back on the date that I promised but I was surprised of how I got treated like this. I waited for 1 an half months already and no message at all, just wondering if they will terminate me so at least I know. Thank you and have a good day ahead.
Regards,
Mary Jane Caruana”
On 20 July 2023, Ms Rebecca Taylor sent the following in reply:
“Good Afternoon MJ,
I hope you’re well. I wanted to respond to you in regards to the below email you sent on the 17th of July regarding your ongoing employment with Dome Port Hedland.
In April this year you informed Gabi that you had flights booked on your behalf, and you wanted to extend your[r] already approved 2 weeks annual leave. Due to the lack of notice of the extension the needs of the business at that time [sic].
You informed Gabi that you would be taking the time anyway. As this leave was not approved it is considered an unapproved absence.
Gabi also communicated to you on 26/4/2023 that should you take this extra time we will not be able to hold your role and you’d be forfeiting your employment with Dome Port Hedland. Upon your return on 3/6/2023 you contacted Gabi requesting to start work the next day, Gabi asked you to come I for a meeting on the 06/06/2023. In this meeting your were explained again that when you took unapproved leave you abandoned your role and as such this position has since been replaced. You confirmed your understanding and communicated you’d be looking for another job.
In conclusion, you are currently no longer employed by Dome Port Hedland due to abandonment of employment through your unapproved absence.
If you have any further questions please don’t hesitate to reach out.
Have a Great Day
Beck Taylor”
On 25 July 2023, Ms Caruana received a final payslip from Dome with her annual leave paid out.
On 30 July 2023, Ms Caruana received an email from Dome inviting her to take part in an exit interview.
On 10 August 2023, Ms Caruana lodged this Application.
Submissions
The Applicant
Ms Caruana submits that the employment relationship ended on 20 July 2023, and thus her application is not out of time.
In support of this, Ms Caruana submits that termination of employment can only take effect once it has been communicated to the employee.[2] Further, she was only informed of the termination on 20 July 2023 via email.
In the alternative, if the termination date was an earlier date, the Commission should consider the following:
Ms Caruana was not made aware of the termination;
As soon as Ms Caruana became aware of the termination, she disputed it by writing to Dome;
There is no prejudice to the employer;
The merits of the application are a ‘gold standard’; and
Ms Caruana occasionally struggles with English.
Ms Caruana further submits that her employment was terminated on the employer’s initiative. Ms Caruana submits that abandonment of employment refers to a situation where an employee ceases to attend their place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to perform their obligations under the employment contract.[3]
Such conduct does not automatically terminate the employment relationship; it provides a basis for the employer to terminate the relationship.[4]
Ms Caruana contends that simply accepting an employee’s absence does not give an employer the right to terminate – there is an expectation on the employer to consult or attempt to consult with the employee to establish the cause of the absence.[5]
Ms Caruana submits that she had a proper explanation for her absence, which was to recover from surgery. Further, because she had already booked annual leave, the Respondent understood why the absence took place.
Ms Caruana further contends that she had told the Respondent of the date of her return, and she did in fact return on that date. Alternatively, the Respondent did not try to contact Ms Caruana to establish the cause of the absence.
The Respondent
Dome’s position is that the employment relationship ended on Ms Caruana’s initiative on either:
· 16 May when she did not attend work; or
· at the meeting on 6 June with Ms Pezzuto.
Dome contends that the employment contract ended on 20 July 2023.
Dome submits that Ms Caruana took an unauthorised period of leave and that she had advance notice that if she did so, Dome would replace her. Further, that consideration of the objective facts shows that Ms Caruana did not attend for work after 16 May 2023 and prior to that date showed a clear intention not to return to work on that date.
Dome also relied on the Abandonment of Employment Decision. Dome submits that the Commission should find that Ms Caruana abandoned her employment by not returning to work on 16 May 2023 and that there can be no finding she was terminated on Dome’s initiative.
Dome submits that if it is found that Ms Caruana was terminated on Dome’s initiative on 16 May or 6 June, there should be no extension of time. Dome argues that:
The lack of formal or written notice should not be a factor that is taken into consideration, as there is no requirement for Dome to have given written notice to end the employment relationship.[6]
Ms Caruana did not dispute the dismissal.
Ms Caruana has not supplied a satisfactory explanation for the delay.
The merits of the case are poor, as there was clear insubordination from Ms Caruana in taking the unapproved leave.
The length of the delay causes prejudice to Dome.
Legislation
Extension of time
Under s 394(2) and (3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances. It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[7] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[8]
When determining whether there are exceptional circumstances, s 394(3) requires the Commission to take into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[9]
Meaning of dismissed
Section 386 of the Act provides:
“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.”
In Mohazab v Dick Smith Electronics Pty Ltd,[10]a decision made prior to the passage of the Fair Work Act, the Full Court of the Industrial Relations Court of Australia considered the meaning of ‘termination at the initiative of the employer’. The Full Court noted that “an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did the employee would have remained in the employment relationship”.
It is uncontroversial that the employment relationship and employment contract are two different concepts. Further, that they do not always end at the same time. An employment relationship can consist of several separate employment contracts, such as that often seen in the labour hire context. Similarly, an employment contract can continue after an employment relationship ends. An example of this is a contractual obligation to keep confidentiality on trade secrets, or restraint of trade clauses, which remain on foot after the employment relationship has ended.
It is well proven that s 386 of the Act refers to the termination of the employment relationship.[11]
The Act does not expressly cover abandonment of employment, though it is not a new concept in employment law.
The principles relating to abandonment of employment can be summarised as:
When resolving jurisdictional questions, it is the facts which are relevant, not the parties’ subjective beliefs or the reasonableness of their conduct.[12]
Abandonment of employment is where an employee does not attend their workplace without proper excuse or explanation. By doing so, they show that they are unwilling or unable to substantially perform their obligations under their employment contract.[13]
Determining whether employment has been terminated at the initiative of the employer does not involve an assessment of the merits of the case – it is not relevant to ask whether particular conduct was ‘justified, reasonable or appropriate’, except to the extent that the answer may shed light on the question of how the employment ended.[14]
The test for abandonment of employment is whether the employee’s conduct would convey to a reasonable person in the employer’s position a renunciation of the employment contract as a whole, or the employee’s fundamental obligations under the contract.[15]
Repudiation is a serious matter and should not be found or inferred lightly.[16]
Both parties rely on the same precedents but differ in their application to this matter.
Consideration
When did the employment relationship end, and on whose initiative?
An objective evaluation of the facts is necessary when examining the timeline of events in this matter.
There are different accounts as to what Ms Caruana and Ms Pezzuto said on 26 April 2023. Regardless of the divergence in evidence, I find the following:
The Respondent had approved two weeks’ annual leave for Ms Caruana from 1 May to 15 May 2023. The Respondent knew that the leave was for medical reasons.[17]
Ms Caruana expressed to Ms Pezzuto that she wanted to extend her annual leave by two weeks.
Ms Pezzuto understood before Ms Caruana commenced her approved annual leave that Ms Caruana was going to take the extended time off regardless of it being unapproved.
The Respondent did not contact Ms Caruana in any way to inform her that they considered that she had abandoned her employment.
Ms Pezzuto factored in Ms Caruana’s absence when rostering staff during May 2023.
I find that the employment relationship did not end when Ms Caruana took the extended leave from 16 May to 2 June 2023.
Whether Ms Caruana’s conduct in taking the extended time off was ‘justified, reasonable or appropriate’ is not the relevant test for determining the jurisdictional objection; that is for a merits determination.
There is also a divergence of evidence as to what Ms Caruana and Ms Pezzuto said during their conversation on 6 June 2023, and how the Commission should interpret their actions following that conversation.
I make the following findings:
Ms Pezzuto did tell Ms Caruana that her prior working hours had been filled.
However, Ms Pezzuto did not tell Ms Caruana whether this was a permanent arrangement or that Ms Caruana’s employment was terminated.
There was a discussion about rosters. I accept that Ms Pezzuto did not give firm commitments to Ms Caruana about whether she would be rostered on in the future. However, I find on balance that Ms Pezzuto and Ms Caruana did talk about future rostering and that Ms Caruana was open to future shifts.
Ms Caruana did say that she would start looking for other work. However, I accept that this was in the context of being told that her prior working hours were no longer available.
Objectively, Ms Pezzuto did not remove Ms Caruana from the Respondent’s employee list or take any action to finish Ms Caruana’s employment administratively. Ms Pezzuto’s subjective evidence that when leaving the meeting on 6 June 2023, she had not made up her mind about Ms Caruana’s employment. In re-examination the Respondent suggested that the reason why Ms Caruana was not removed from the Respondent’s employee list was because Ms Pezzuto was busy. I do not accept this argument.
There had been at least one recent example of a two-month break in Ms Caruana’s employment in November and December 2022.
Ms Caruana did not receive her final pay with the payout of her accrued annual leave until 20 August 2023. Ms Caruana also received the exit interview email on 30 July 2023.
On the balance of probabilities, I am not satisfied that Ms Caruana’s employment ended on 6 June 2023.
The Respondent appear to rely on Ms Caruana saying that she would (and did) find other short-term work as abandonment or resignation. In context, I do not find that Ms Caruana’s conduct constitutes abandonment or resignation.
I find that the employment relationship ended on 20 July 2023. Ms Caruana’s application is therefore not out of time. I further find that Dome terminated Ms Caruana’s employment when Ms Taylor sent her response to Ms Caruana’s email query.
Extension of time
If my conclusion as to the date of termination is incorrect, I now turn to consider whether to exercise the discretion in s 394(3) of the Act to grant a further period for the application to be made.
Reason for the delay
If Dome had terminated Ms Caruana on 16 May 2023, her application would be 65 days out of time. If Dome had terminated Ms Caruana on 6 June 2023, her application would be 44 days out of time.
The delay is the period commencing immediately after that time until 12 June 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[18]
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.[19]
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.[20]
Ms Caruana submits that the reason for the delay is because she did not know that she had been terminated. The Respondent submits that this is not a satisfactory reason for the delay.
It is common ground between the parties that the Respondent did not provide any written notice or confirmation of Ms Caruana’s employment status until Ms Taylor’s email on 20 July 2023.
I accept the Respondent’s reliance on Duggan v Metropolitan Fire and Emergency Services Board[21] in that written notice is not required to end an employment relationship. However, I do consider that written notice (or lack of) is a factor in determining whether Ms Caruana understood that her employment had been terminated.
I note that the Respondent did not pay out Ms Caruana’s accrued annual leave entitlements until after 20 August, which is one of the common ways that signal an employment relationship has come to an end. I further note the Respondent’s obligations under clause 23.6 of the Hospitality Industry (General) Award 2020, where the Respondent must pay an employee all amounts due to an employee under the award and NES within 7 days after an employee’s employment terminates. I do not take this obligation to be a factor in determining when the employment relationship ended, but I consider it in the context of evaluating what was Ms Caruana’s knowledge of whether a dismissal had occurred.
This was not the first time that there had been a break in Ms Caruana’s employment, with the two-month break in 2022. Ms Pezzuto’s evidence is that notwithstanding the issues with Ms Caruana taking unapproved leave at the time, Dome resumed rostering Ms Caruana on after she had returned.
I lastly note that Ms Caruana is conversationally fluent in English, but it is not her native language. It was clear during the hearing that there were concepts that Ms Caruana had difficulty understanding without the translator’s assistance.
Accordingly, I find that the reason for the delay is that Ms Caruana did not understand that she had been terminated.
Given the circumstances outlined above, I find that this is a satisfactory explanation for the period of the delay in making the unfair dismissal. This is a factor that weighs in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect.
As outlined above, Ms Caruana’s evidence is that she did not know she had been dismissed. This is a factor that weighs in favour of a finding of exceptional circumstances.
Action taken to dispute the dismissal
After Ms Taylor’s email, Ms Caruana sent an email to Ms Pezzuto. This email effectively outlined Ms Caruana’s confusion and anger at Ms Taylor’s email. I do not find that this email constitutes action to dispute the dismissal.
This factor is not conducive to a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
Ms Caruana submits that there is no prejudice to the employer, as she is not seeking reinstatement.
The Respondent submits that the length of the delay causes prejudice to the employer. However, the Respondent did not expand on this argument or provide evidence in support of this submission.
I find that this is a neutral factor in this case.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[22] Further, the primary consideration is whether the Applicant has an arguable case.[23]
Ms Caruana’s representative submits that Ms Caruana has a ‘gold standard’ case but did not expand on this submission. The Respondent submits that the merits of the case are poor, as Ms Caruana was insubordinate when she took the extended leave.
A valid reason is only one consideration in assessing the merits of an unfair dismissal application. I find that this is a neutral factor in this case.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Extension of time conclusion
If the Respondent had dismissed Ms Caruana on 16 May 2023 or 6 June 2023, I would have found that the considerations in s 394(3) of the Act favour a finding of exceptional circumstances.
I would have given significant weight to the reason for the delay, and the Respondent’s actions that contributed to Ms Caruana’s confusion as to the status of the employment relationship.
I would have been satisfied that there are exceptional circumstances and accordingly granted the extension of time.
Conclusion
I find that the employment relationship ended on 20 July 2023 and Ms Caruana’s application was made within the time required in s 394(2)(a). Alternatively, if I had found that the employment relationship had ended on 16 May 2023 or 6 June 2023, I would have found that exceptional circumstances exist that justify the granting of an extension of time. I further find that the employment relationship ended on the Respondent’s initiative.
The application was lodged within the statutory time limit and is within jurisdiction. The matter will accordingly be programmed for a merits determination.
COMMISSIONER
Appearances:
Mr Wright for the Applicant
Mr Agnew for the Respondent
Hearing details:
2023.
Perth via MS Teams
17 October 2023
[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited[2022] FWCFB 234.
[2] Ayub v NSW Trains [2016] FWCFB 5500 at [35]; WorkPac v Bambach [2012] AIRC 163.
[3] Abandonment of Employment (AM2016/35) at [21].
[4] Ibid, at [23].
[5] Thompson v Zadlea Pty Ltd[2019] FWC 1587 at [49]
[6] Duggan v Metropolitan Fire and Emergency Services Board [2017] FWCFB 4878.
[7] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[8] Ibid.
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[10] [1995] IRCA 625.
[11] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 4092; NSW Trains v James [2022] FWCFB 55.
[12] Searle v Moly Mines Limited [2008] AIRCFB 1088, at [38].
[13] Abandonment of Employment Decision at [21].
[14] Searle v Moly Mines Limited [2008] AIRCFB 1088 at [24].
[15] Abandonment of Employment Decision at
[16] NSW Trains v Mr Todd James [2022] FWCFB 55 at [125].
[17] Form F3, paragraph 3.2(3).
[18] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[20] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[21] Duggan v Metropolitan Fire and Emergency Services Board (2017) 251 FCR 1
[22] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[23] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].
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