Megan Ryan v Sharp N Stylish
[2024] FWC 3477
•13 DECEMBER 2024
| [2024] FWC 3477 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Megan Ryan
v
Sharp N Stylish
(C2024/6888)
| COMMISSIONER TRAN | MELBOURNE, 13 DECEMBER 2024 |
Application to deal with contraventions involving dismissal - Jurisdictional objection - Application filed out of time - Inadequate reasons for delay - Objection upheld - Application dismissed
Before dealing with a dispute under s 365, the Commission must first be satisfied that an application was made within time or allow a further period of time under section 366.
On 26 September 2024, Ms Megan Ryan (the applicant) applied to the Fair Work Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth). Ms Ryan was employed by Hollie Tenille Lobb trading as Sharp N Stylish under ABN 17 148 078 339 (the employer/respondent) as Front of House Manager. She started her employment on 2 April 2024.
The parties disagreed about whether Ms Ryan was employed on a part-time or casual basis.
Ms Ryan says that she did not know when she was dismissed. She last worked on Friday 9 August 2024. On 14 August 2024, Ms Ryan received a text message from Ms Lobb that said:
“I just don’t think that I have a job at all for front house at the moment”
Ms Ryan says that she was told to take unpaid leave and that there would be work for her when the salon got busy again. She said that after about 7 weeks she could no longer wait around and so she got another job and filed this application.
If Ms Ryan’s employment ended on 14 August 2024, then her application filed on 26 September 2024 was 22 days after the end of the statutory time period. The Commission may allow a further period if satisfied that there are exceptional circumstances taking into account the factors in section 366(2) of the Act, which are:
(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
I held a determinative conference on 9 December 2024 via Teams. Ms Ryan gave evidence for herself. Ms Lobb gave evidence on behalf of the employer. Both parties also filed materials, which were completed template unfair dismissal documents, letters in support and copies of payslips and text messages.
Ms Ryan says that the reason for the delay was that she was not clearly told or given notice that her employment had ended. She says that she expected to be re-employed when the employer got busy again but then could no longer ‘wait around’. She said that she had multiple phone calls with Ms Lobb in which Ms Lobb promised her more work. After the text message of 14 August 2024, Ms Ryan did not attempt to attend work nor was she paid.
Ms Lobb gave evasive and self-serving evidence, and was unable to provide dates or recall specific dates when she had conversations with Ms Ryan. Ms Lobb says that she had multiple phone conversations before Ms Ryan’s employment ended in which she had let Ms Ryan know that Ms Ryan was not suited to the role of Front of House Manager and that she tried to ‘let her down lightly.’ Ms Lobb also said that she spoke with Ms Ryan every day, including after Ms Ryan’s last day of work. Ms Lobb made no records about the discussions she had with Ms Ryan, no records of Ms Ryan’s employment because she says that Ms Ryan was still within her trial period and a casual employee.
I am of the view that Ms Ryan’s dismissal took effect on 14 August 2024, when Ms Lobb sent her the text message above. Ms Ryan’s last day of work occurred before this text message and she did not work on any date after it. This is because in answer to my question about what she understood the text message to mean, Ms Ryan said, “that she [Ms Lobb] doesn’t have a position for me at this time” but also that the text message was “not an official notice of ending of employment.” While it is unacceptable for any employer to not comply with the National Employment Standards, termination is a fact and an employer’s failure to comply or provide notice as required does not invalidate the fact of termination or change the date that the termination occurred.[1]
I do not find Ms Ryan’s reason an acceptable one for the delay in filing her application.
Ms Ryan did not take any action to dispute the dismissal until she filed her application.
No submissions were made about the delay, including prejudice to the employer due to the delay.
In relation to the merits of the application, Ms Ryan ultimately does not allege that the reasons for her dismissal was in breach of the general protections’ provisions. Ms Ryan’s grievance is that she was not paid notice on termination of employment.
I am not aware of any matter in relation to fairness between Ms Ryan and other persons in a like position.
Conclusion and Order
Having considered the arguments made and the evidence and information provided by the parties, I am of the view that none of the factors weigh in favour of a finding of exceptional circumstances, so I cannot extend time within the Act.
I order that Ms Megan Ryan’s application for the Commission to deal with a general protections dispute involving dismissal under FWC Matter number C2024/6888 is dismissed.
COMMISSIONER
Appearances:
The applicant for herself
Ms H Lobb for the Respondent
Hearing details:
Monday
9 December 2024
Via Microsoft Teams
[1] see Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878at [32]; see also Southern Migrant and Refugee Centre Inc v Shum(No 3) [2022] FCA 481at [206]; Cody v Stratacache Australia Pty Ltd[2022] FWCFB 116 at [29]
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