Mel Waters v Gap Youth and Community Centre Aboriginal Organisation

[2020] FWC 3801

[2020] FWC 3801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 – General protections

Mel Waters
v
Gap Youth and Community Centre Aboriginal Organisation
(C2020/595)

DEPUTY PRESIDENT KOVACIC CANBERRA, 21 JULY 2020

Application to deal with contraventions involving dismissal – jurisdictional objection: application lodged out of time – no exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2) – application dismissed.

[1] Mx Mel Waters (the Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that they had been dismissed by Gap Youth and Community Centre Aboriginal Organisation (the Respondent) on 13 January 2020 in contravention of the general protections provisions in the Act. The application was received by the Fair Work Commission on 3 February 2020. In the application, the Applicant contends that the Respondent contravened ss.340 and 343 of the Act which respectively deal with protection and coercion.

[2] The Respondent in its Form F8A – Response to general protections application raised a jurisdictional objection, contending that the Applicant was dismissed on 6 January 2020 and that the application was therefore lodged outside the 21 day statutory timeframe specified in the Act. Based on a termination date of 6 January 2020, the application was lodged seven days late.

[3] Directions were issued on 18 May 2020. The Applicant did not file any material in accordance with the Directions. The jurisdictional objection was the subject of a telephone hearing on 2 June 2020. At the telephone hearing the Applicant was self-represented. Mr Rob Perry, a Senior Workplace Relations Advisor with the Chamber of Commerce and Industry Northern Territory, appeared for the Respondent.

[4] The Applicant led no evidence in support of the application. Ms Michelle Krauer, the Respondent’s Chief Executive Officer, gave evidence for the Respondent.

[5] For the reasons outlined below, I have determined that:

(i) the Applicant was dismissed on 6 January 2020 and that as a result the application was lodged seven days late;

(ii) there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2) of the Act; and

(iii) the application will be dismissed.

Background

[6] The Applicant was contracted by the Respondent from 28 October 2019 as an Assessment and Referral Officer, with the Applicant’s probationary period scheduled to end on 28 April 2020. The Respondent is located in Alice Springs. On 6 January 2020 the Applicant was given the following termination letter:

“Your probation period with us at the Gap Youth and Community Centre Aboriginal Corporation is due to end on 28 April 2020.

I confirm that we have decided not to continue your employment . As a result, your employment will end on Monday 13 January 2020. You will be paid one week’s pay in lieu of notice.

Employees and employers may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at color="#131315">We wish you well in your future endeavors'.” 1 (Formatting and errors as per original)

The Statutory framework

[7] Section 366 of the Act provides:

“366 Time for application

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 FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

On what date was the Applicant dismissed?

[8] The first issue to be determined by the Commission is the date on which the Applicant was dismissed.

[9] The Respondent submitted that the Applicant’s employment was terminated on 6 January 2020, adding that was the Applicant’s last day at work. The Respondent further submitted that the Applicant was paid to that date and was also paid an extra week’s pay in lieu of notice and all accrued leave entitlements as at 6 January 2020. While the Respondent conceded in its submissions that the termination letter given to the Applicant incorrectly stated that the Applicant’s last day of work would be 13 January 2020, it contended that this was a clerical error and the Applicant should have reasonably been aware that their employment had been terminated effective 6 January 2020. The Respondent also posited that it was clear from the facts of this matter that the Applicant knew the termination took effect on 6 January 2020, adding that this was borne out by the fact that the Applicant had not made a claim for not having been paid a week’s notice in lieu in accordance with s.117(3) of the Act.

[10] Ms Krauer in her witness statement 2 deposed that when she gave the Applicant the termination letter on 6 January 2020 she confirmed with the Applicant that that day would be their last day with the Respondent, adding that she subsequently saw the Applicant gather up their personal belongings and leave the workplace. Mr Krauer further stated that the Applicant did not present for work again after 6 January 2020. Attached to Ms Krauer’s witness statement was the Applicant’s pay slip dated 8 January 2020 (for the pay period 25 December 2019 to 7 January 2020) which showed that the Applicant was paid $1,337.98 in lieu of notice (38 hours x $35.21 per hour).3 Also in her witness statement, Mr Krauer acknowledged that there was an error in the termination letter regarding the employment end date, adding that the error was made by her indicating that the Applicant would be paid a week’s pay in lieu of notice for her employment that would have otherwise have ended on 13 January 2020. Mr Krauer further deposed that at no time had the Applicant contacted her and sought a further week’s pay in lieu of notice beyond 13 January 2020.

[11] In her oral evidence Ms Krauer reiterated key aspects of her witness statement. The Applicant asked Ms Krauer one question in cross examination, i.e. whether they would be paid an extra week in lieu of notice, with Ms Krauer stating that all entitlements had been paid to the Applicant. In response to a question from the Commission, Ms Krauer attested that the Applicant did not present for work after 6 January 2020.

[12] At the hearing the Applicant submitted that Ms Krauer did not say that 6 January 2020 was the Applicant’s last day of work, adding that Ms Krauer said the Respondent was giving the Applicant an extra week’s pay to allow the Applicant to look for work. In response to a question from the Commission the Applicant confirmed that they did not “front up” to work after 6 January 2020.

[13] While the termination letter is clumsily worded, in circumstances where it was not disputed that the Applicant did not present for work after 6 January 2020 and given that the Applicant was paid a week’s pay in lieu of notice on 8 January 2020, I am satisfied that the Applicant’s employment was terminated with effect from 6 January 2020 and that the Applicant understood that to be the case despite their submissions to the contrary. I prefer Ms Krauer’s version of the events of 6 January 2020 for two reasons. First, Ms Krauer’s version of the events was given as sworn evidence whereas the Applicant led no evidence in support of their contentions as to the events of that day. Second, the Applicant did not challenge Ms Krauer’s evidence regarding the events of 6 January 2020 in cross examining Ms Krauer.

[14] On that basis, the Applicant’s application was lodged seven days late. Accordingly, the Commission must now determine whether there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2) of the Act.

Whether to allow a further period for the application to be made

[15] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[16] In respect of this consideration, the Applicant at the hearing relied on three primary grounds, i.e. they thought the dismissal took effect on 13 January 2020; they found it very difficult to deal with the situation and Ms Krauer given her alleged threats that the Applicant would not find “work in town” and lastly, because they were anxious about the entire situation.

[17] The Respondent submitted that it had not been advised of any reasons for the late lodgement of the application. The Respondent also submitted that to the extent the Applicant relied on the date mentioned in the termination letter as the reason for the delay in lodging the application, such a contention would be unreasonable in all the circumstances for the reasons set out in its submissions as to why 6 January 2020 was the termination date (see paragraph [9] above). In its submissions the Respondent drew on the decisions in Cheyne Leanne Nulty v Blue Star Group (Nulty) 4, Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters5and Ho v Professional Services Review Committee No 2956.

[18] The Applicant’s contention that they did not lodge their application earlier because they thought the dismissal took effect on 13 January 2020 may have carried some weight had the Applicant presented for work after 6 January 2020. However, for the previously outlined reasons, I am satisfied that the Applicant understood that the dismissal took effect on 6 January 2020. In other words, the Applicant’s actions do not support the Applicant’s contention.

[19] Beyond that, the Applicant provided no evidentiary material to substantiate their contention regarding anxiety or that it precluded the Applicant from lodging the application within time. As stated by Deputy President Gostencnik in Krystena Casey v Guardian Community Early Learning Centres T/A Smith Street Childcare 7:

“[16] …Indeed, stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay.” 8

[20] Against that background, the reasons for the delay relied upon by the Applicant do not point to the existence of exceptional circumstances in this case.

(b) Any action taken by the person to dispute the dismissal

[21] The Applicant submitted that they contacted the Northern Territory Working Women’s Centre and once the Applicant’s anxiety had lifted also had friends look over the application prior to it being lodged with the Commission. In response to questions from the Commission, the Applicant stated that:

•  this occurred in the week before the application was lodged; and

•  they did not say anything about the dismissal to Ms Krauer on 6 January 2020 as they considered Ms Krauer not reasonable to talk to.

[22] The Respondent submitted that it was not aware of any action taken by the Applicant to dispute their dismissal other than the Applicant lodging their general protections application.

[23] The Applicant provided no evidence to substantiate their submissions regarding this consideration. In the absence of such evidence, limited weight can be attached to the Applicant’s submissions in this regard. Further, based on the Applicant’s submissions, it appears that any steps they may have taken to dispute the dismissal were only taken around 21 days or more after their dismissal. Against that background, this factor does not point to the existence of exceptional circumstances in this case.

(c) Prejudice to the employer (including prejudice caused by the delay)

[24] The Respondent conceded that there was no real prejudice to it as a result of the application being lodged out of time. I therefore consider the issue of prejudice to be a neutral consideration.

(d) The merits of the application

[25] The Application described the actions of the Respondent which led to the application as including the Applicant:

•  feeling that their position description had changed from “Assessment and Referral Officer” to “Data Entry” without discussion;

•  executing a workplace right in emailing Ms Krauer and the Applicant’s supervisor/manager to document the disappointment young people felt when they witnessed bicycles donated from the Police station for them given to staff members; and

•  exercising a worker right when the Police were refused entry to the Respondent’s premises on Christmas eve.

[26] As to how the Respondent’s actions contravened ss.340 and 343 of the Act as contended in the application, the Applicant stated that:

•  Ms Krauer’s threat that the Applicant will never work in town again if they were to speak negatively about the Respondent amounted to coercion;

•  the Respondent’s actions did not protect the Applicant’s right to document and make complaint on behalf of young people or to make inquiry and be trained in the procedure in relation to employment with police and them attending the premises; and

•  the Respondent’s actions entailed discrimination based on political values.

[27] At the hearing the Applicant reiterated that the Respondent kept changing the position description for their position.

[28] The Respondent submitted that the grounds set out by the Applicant in the application did not disclose any adverse action by the Respondent that could be seen to have contravened the Applicant’s workplace rights, adding that the only reason the Applicant was terminated was due to poor performance and failing to adhere to reasonable directions in the workplace.

[29] Attached to the application was a copy of the role description for the Applicant’s position. The document describes the Applicant’s main duties as follows:

“ – To ensure assessment occurs in a non-clinical, activity based manner that is both safe and culturally appropriate;

To develop a more culturally appropriate vulnerability index to better assess the young person’s immediate needs and makes referrals to courses, activities and programs;

To work with other organisations and programs to ensure young people are equitably able to access the right service and to avoid unnecessary duplication

To develop a range of data that highlights the most pressing needs and priorities in a meaningful and longitudinal manner.”

[30] The role description further provides as follows:

“The purpose of the position is to assess and collect data to support young people prior to and during referral processes to prevent duplication of services and assist in reducing youth contact with the criminal justice system.

The Assessment and Referral Officer provides confidential client referrals, case management and administration services to the After Hours Youth Service (AHYS) at the Gap Youth Centre.”

[31] It is clear from the above extracts of the Applicant’s role description that data related activities were an integral part of the role, which suggests that the Applicant saw her role somewhat differently to how the Respondent saw it. Against that background, the Respondent’s apparent desire for the Applicant to focus on data related activities does not of itself appear to involve a contravention of the general protections provisions of the Act. I note also that the Applicant provided no material to support her contention regarding the threats allegedly made by Mr Krauer or to support the contention that the dismissal stemmed from the actions set out at paragraph [25] above. Against that background, the merits of the application do not appear strong. As such, this consideration does not point to the existence of exceptional circumstances in this case.

(e) Fairness as between the person and other persons in a like position

[32] The Applicant made no submissions on this point. On the other hand, the Respondent effectively submitted that this factor was not relevant in this case.

[33] Accordingly, I consider this factor to be a neutral consideration.

Conclusion

[34] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in Nulty in the following way:

“[13] In summary, the expression “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.” 9

[35] Having considered all of the factors set out in s.366(2), and drawing on the decision in Nulty, 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). In particular, I note that none of the factors in s.366(2) point to the existence of exceptional circumstances in this case, though two of those factors are neutral considerations.

[36] Accordingly, the application is dismissed. An order to that effect will be issued with this decision.

Appearances:

M. Waters on their own behalf
R. Perry for the Respondent

Telephone Hearing details:

Canberra and Alice Springs
2020
June 2.

Printed by authority of the Commonwealth Government Printer

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 1   Exhibit 1 at Annexure “A”

 2   Exhibit 1

 3   Ibid at Annexure “B”

 4   [2011] FWAFB 975

 5   [2018] FWCFB 901

 6 [2007] FCA 388

 7   [2014] FWC 4002

 8   [2014] FWC 4002 at [16]

 9   [2011] FWAFB 975 at [13]