Megan Griffiths v Bamara
[2019] FWC 8173
•4 DECEMBER 2019
| [2019] FWC 8173 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Megan Griffiths
v
Bamara
(C2019/5653)
COMMISSIONER YILMAZ | MELBOURNE, 4 DECEMBER 2019 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.
[1] On 12 September 2019, Ms Megan Griffiths lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) against Bamara. On 20 August 2019, Ms Griffiths’ employment was terminated. She alleges that the termination is in breach of s.340 of the Act.
[2] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged two days after the 21-day statutory time limit.
[3] I granted Ms Anne Roach from People Plus Australia permission to appear on behalf of the Respondent to enable the matter to be dealt with more efficiently.
Ms Griffiths’ submissions
[4] Ms Griffiths submits that on 29 July 2019 she commenced as a case manager in the Palmerston office to provide clients with the community services offered by Bamara.
[5] In her first week of employment Ms Griffiths alleges she was left alone as the customer service officer (CSO) was away, and her team leader who is based in Cairns was uncontactable. Ms Griffiths submits she contacted the Adelaide office for support as she was still in training and new to the organisation.
[6] In her second week, Ms Griffiths submits that the CSO was absent again and she worked alone. She submits her calls to her team leader went unanswered.
[7] In her third week of employment, Ms Griffiths submits she injured herself after a coughing fit and despite her efforts, she failed to make contact with her team leader to advise that she needed to obtain medical attention. She submits she worked Monday to Wednesday but needed medical attention on Thursday 15 August 2019. She further submits she again was unable to contact her team leader; however, she received a text from the training manager based in the Cairns Office confirming that the office was not due to open until 9.00 am. Ms Griffiths then contacted the Adelaide office and submits she was instructed to put a sign on the door and reschedule clients.
[8] Ms Griffiths admits she did not put a sign on the door and did not reschedule client appointments as she was unable to do so given the unreliability of the computer system. 1 She submits that when she left for a 10.00 am doctor appointment, her colleague, the CSO was still in the office.
[9] Ms Griffiths also submits she was unaware the Managing Director was intending to visit the site. Had she been aware she would have organised herself. She submits that the CSO had intended to leave the office on the same day.
[10] Ms Griffiths submits that Bamara have a high turnover of staff and this is indicative of a lack of support. She feels aggrieved that she felt unsupported and she incurred costs with her move to Palmerston. She submits she did the best she could in her role.
[11] On 15 August 2019, on the same day that Ms Griffiths attended her medical appointment, she received a call from her team leader who she submits stated that Ms Griffiths did not attempt to contact her, that she had a bad attitude and should not have contacted the Adelaide office. Also, on that same day, Ms Griffiths received a call from Ms Andrea Harms, the Managing Director stating that she had broken protocol by leaving the office unattended.
[12] On Tuesday 20 August 2019, when Ms Griffiths returned to work, the training manager advised Ms Griffiths that her employment was terminated. Ms Griffiths submits she asked why, but was not informed of the reason, but was told to leave the office or the police would be called. She admits to being very angry and losing her temper. 2
[13] Ms Griffiths contends that the contraventions of the Act by Bamara relate to:
• s.340 protection of workplace rights. 3
[14] Ms Griffiths alleges the termination of her employment followed when she raised concerns regarding the lack of support (being left alone with no support) and raising issues with the internet which inhibited the lodgement of incident reports. Ms Griffiths submits she raised these concerns with the Adelaide office, the Casuarina office and her case manager from Aboriginal Employment Strategy.
[15] Ms Griffiths filed her letter of termination of employment, with her general protections’ application. The letter of termination of employment states that her probation period ends on 29 January 2020 and that Bamara decided not to continue her employment beyond 20 August 2019. The letter also states that she is paid one week in lieu of notice and her accrued annual leave entitlements.
Bamara’s submissions
[16] Bamara denies that the termination is due to a contravention of workplace rights.
[17] In relation to allegations that Ms Griffiths was left on her own, Bamara provides training records showing she had face to face support from her training manager. 4 Records submitted confirm training was conducted face to face on 30-31 July and 1 and 8 August 2019. Bamara also submitted team meeting notes which confirm that Ms Griffiths failed to attend five of the eight meetings, although one was due to internet failure.
[18] Bamara submits of the five days taken for sick leave; a medical certificate was submitted for two days.
[19] Bamara raised the jurisdictional objection on the basis that Ms Griffiths’ application was lodged outside the statutory time limit.
Consideration
[20] On 27 November 2019, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.
[21] General protections applications involving dismissal must be made within 21 days.
[22] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a) The reason for the delay; and
(b) Steps taken to dispute the termination; and
(c) Prejudice to the employer; and
(d) Merits of the application; and
(e) Fairness between the person and other persons in a like position
[23] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 5 where it was held that:
“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 6
[24] I now turn to Ms Griffiths’ arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
[25] The general protection involving dismissal application was lodged with the Commission on 12 September 2019.
[26] Ms Griffiths concedes in her submissions that her application was two days late. 7 There is no contention that the termination of employment came into effect on 20 August 2019.
[27] Ms Griffiths submits she moved to Palmerston to be closer to work on 17 August 2019, and in the move her laptop was broken. She further submits she had no money and had been ill due to stress. She submits she is aware that the local library has computers however, the waiting time to use them can be lengthy.
[28] Ms Griffiths did not submit any evidence to support her contention that she was prevented from filing her application on time due to her illness or that she could not access the computers in the library to advance her application on time. Ms Griffiths did admit however, that obtaining Newstart payments and alternative work were a priority after her employment was terminate by Bamara. 8
[29] The bar for this consideration is high and having regard to the submissions and evidence, I am not satisfied that Ms Griffiths demonstrated exceptional circumstances regarding this consideration. While Ms Griffiths’ priorities of Newstart payments and alternative employment are understandable, I do not consider the reasons given for the delay sufficiently weigh in her favour.
Steps taken to dispute the termination
[30] Ms Griffiths claims she disputed her termination when she was advised of her termination of employment on 20 August 2019. 9
[31] Bamara submits the training manager was verbally abused after Ms Griffiths was informed of her termination of employment. Further it is submitted that Ms Griffiths threw her keys at the training manager, narrowly missing her.
[32] Ms Griffiths submits she made no other contact with Bamara regarding her termination of employment. This consideration does not weigh in Ms Griffiths’ favour.
Prejudice to the employer
[33] Ms Griffiths asserts that granting an extension of time will not cause Bamara disadvantage or unfairness.
[34] Bamara contends that it is unfair to grant an extension of time as this would show favouritism to Ms Griffiths and the timeframes have applied to past applicants.
[35] While I accept that an extension will be an inconvenience, this does not constitute an unfair disadvantage caused by the delay. In line with established precedent, even the mere absence of prejudice is an insufficient basis to grant an extension. In this matter I am swayed by the balance of all of the considerations required pursuant to s.366(2) and I find this consideration is not in Ms Griffiths’ favour.
Merits of the application
[36] Ms Griffiths contends that the reason for her termination of employment was because she raised concerns about her being left alone unsupported with the Adelaide office, the Casuarina office and her case manager from Aboriginal Employment Strategy. She contends that she felt unsafe on her own in the office and that she had difficulty coping with the work.
[37] In support of her application, a copy of an email sent by the Career Mentor of the Aboriginal Employment Strategy to Ms Griffiths’ team leader and other Bamara staff, was filed. This email dated 14 August 2019, states that Ms Griffiths has concerns about the CSO, the training provided, her fears about being left alone and system issues. It is submitted that Bamara did not respond to the email.
[38] Bamara submits that during her employment, a total of three weeks and one day, Ms Griffiths took five days of sick leave without a medical certificate, she received training and support and one day was a public holiday. It contends Ms Griffiths was on her own for two days in total. The submissions and evidence of Bamara was disputed by Ms Griffiths. 10
[39] Bamara submits her employment was terminated due to lack of progress and co-operation, and poor behaviour demonstrated towards staff and clients.
[40] While the evidence was not sufficiently tested, the likelihood of Ms Griffiths succeeding on merit appears low. Therefore, I find this consideration to not weigh in her favour.
Fairness between the person and other persons in a like position
[41] While brief submissions were made by Bamara, they were not persuasive. Consequently, I consider this to be a neutral factor in the present matter.
Conclusion
[42] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
[43] On balance of all the considerations, I am not persuaded that Ms Griffiths has substantiated exceptional circumstances for an extension of time.
[44] Having considered all of the evidence and submissions against each 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. An order 11 to that effect will be issued separately.
COMMISSIONER
Appearances:
Ms M Griffiths on her own behalf
Ms A Roach for the Respondent
Hearing details:
2019
Melbourne, Darwin
27 November (video hearing)
Printed by authority of the Commonwealth Government Printer
<PR714792>
1 Applicant’s oral submissions.
2 Ibid.
3 Applicant’s Form F8 at Q3.2; Applicant’s oral submissions.
4 Respondent’s Outline of Argument at Attachment C.
5 [2011] FWAFB 975.
6 Ibid at [13].
7 Applicant’s Outline of Argument at Q1d.
8 Applicant’s oral submissions.
9 Applicant’s Outline of Argument at Q1e.
10 Ibid.
11 PR714829.
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