Melanie Harris v Aldi Pty Ltd T/A Aldi

[2020] FWC 2931

[2020] FWC 2931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melanie Harris
v
Aldi Pty Ltd T/A Aldi
(U2020/3257)

COMMISSIONER YILMAZ MELBOURNE, 5 JUNE 2020

Application for an unfair dismissal remedy – application lodged out of time – exceptional circumstances- application dismissed.

[1] This decision concerns a jurisdictional objection raised by Aldi Pty Ltd (Aldi) to an application by Ms Melanie Harris for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Harris was employed by Aldi as a part-time store assistant on 19 June 2017 until her dismissal on 24 January 2020. She claims that her dismissal was unfair.

[3] Ms Harris was not represented and leave to be legally represented was granted to Aldi.

[4] Aldi raises the jurisdictional point that the application was lodged more than 21 days after the dismissal took effect.

[5] The application was filed on 19 March 2020, 34 days late.

The Applicant’s submissions

[6] Ms Harris was dismissed on 24 January 2020 by letter sent by email for gross misconduct in breach of the Personal Behaviour and Customer Courtesy policies.

[7] On 23 January 2020, Ms Harris was called in to an investigative meeting concerning an incident on 9 January 2020 between her and a customer. Ms Harris was given an opportunity to make statements in response to the allegations against her concerning her behaviour.

[8] On 24 January 2020, Aldi provided a letter to Ms Harris by hand, informing her of the purpose of the show cause meeting scheduled for the same day. It is understood that the show cause meeting occurred at 2.00pm on 24 January 2020. The letter outlines the process of investigation of the incident including viewing of CCTV footage and interviewing of witnesses. Further it details the investigative steps, findings of the investigation and a direction that she show cause why the alleged serious misconduct should not lead to termination of her employment. 1 On the same day, Aldi terminated Ms Harris and emailed her a termination of employment letter.2

[9] Ms Harris contends in her defence that she was verbally abused by a 70-year-old customer close to closing time, and that the same customer had abused her on earlier occasions. Ms Harris submits she suffers from panic attacks caused by prior experiences with an Aldi manager at another store, and due to having previously lived in an abusive domestic relationship.

[10] Ms Harris submits that when the customer began abusing her, she informed the customer that she would not serve her. Ms Harris submits she began to feel a panic attack coming along during their verbal exchange.

[11] While another co-worker was serving the customer, Ms Harris submits that the customer complained about Ms Harris in earshot of herself, staff and another customer that Ms Harris was serving.

[12] Ms Harris then admits to telling the customer to “shut up”, which she acknowledges that she should not have done so. She submits that she suffered a panic attack and when she left the workplace after being spoken to by management she was in tears and struggling to breathe.

[13] Ms Harris submits her termination due to misconduct for this incident is unfair and that Aldi should have taken steps to train her to deal with abusive customers. Further she submits that Aldi should protect its staff by providing training and supervision in response to growing concerns relating to abuse from customers. 3

[14] Ms Harris acknowledges that the reason given to her by her employer was that she breached the ‘Personal Behaviour Policy’ on page 17 of the employee handbook, where it states:

“All employees are expected to conduct themselves in a professional and socially acceptable manner e.g. threats, abuse, bullying, physical or verbal violence are not permitted. Provocation will not be accepted as an excuse.” 4

[15] Ms Harris gave witness evidence and relies on her written materials. Ms Harris filed her merit outline of submissions even though an extension of time is being considered as the threshold matter. Nevertheless, her merit outline of submissions is expressed in a way that is largely consistent with her statement of evidence and outline of submissions.

The Respondent’s submissions

[16] Aldi submits that Ms Harris was dismissed on 24 January 2020 and lodged her application 55 days after her termination of employment. It submits there are no exceptional circumstances that would warrant the granting of an extension of time.

[17] Aldi reserved its rights to file its response to merit, if required, following the resolution of the jurisdictional out of time objection.

Consideration

[18] On 15 May 2020, I convened a hearing to determine whether to allow an extension of time for the lodgement of the application for unfair dismissal.

[19] It was not contested that the Applicant was dismissed from her employment on 24 January 2020, nor was the incident between Ms Harris and the customer.

[20] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3).

[21] However, s.394(3) 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) Whether the first person became aware of the dismissal after it had taken effect; and

(c) Steps taken to dispute the termination; and

(d) Prejudice to the employer; and

(e) Merits of the application; and

(f) Fairness between the person and other persons in a similar position

[22] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 5 (Nulty) 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

[23] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.394(3).

The reason for the delay

[24] Ms Harris argues the reasons for the delay are:

•  She was unaware of the 21-day statutory time limit;

•  She had suffered shock from being dismissed as she had not been dismissed before;

•  She became the carer for her father-in-law a week after her dismissal because he developed quick onset dementia;

•  She had caring responsibilities for her partner’s children; and

•  She felt stressed due to with COVID-19 (coronavirus).

[25] In this matter while giving witness evidence, Ms Harris added reasons beyond those in her outline of submissions. Ms Harris also submitted a Centrelink Carer Payment and/or Carer Allowance Medical Report (the Report) in support of her submission that she had carer responsibilities. The purpose of the Report is to confirm her status as carer to enable access to government financial support.

[26] The Report was signed on 2 March 2020 and confirms that Ms Harris has carer responsibilities over the course of a normal working day for supervision, assistance with mobility, prompting, cooking and cleaning. The Report provides no information to justify the submission that she could not file her application within time.

[27] Ms Harris also made reference to her caring for her partner’s children as a reason for the delay. Again, no particulars were provided to explain how those caring responsibilities impacted her ability to attend to her application.

[28] Ignorance being another of Ms Harris’ reasons is not an exceptional circumstance. 7 Aldi in their submissions point out that Ms Harris states in her outline of argument on Merits,8 that she said during the show cause meeting that she will contact a lawyer as she thinks her dismissal is unfair. There is no reason to doubt Ms Harris’ statement, however, she did not provide any material confirming that she obtained legal advice or made inquiries herself about the process or conditions in respect to filing an application. Ms Harris was aware of her option to file an unfair dismissal application, but no evidence of any action was submitted.

[29] Ignorance and shock at being dismissed, does not justify an extension of time. 9 Ms Harris did not present any evidence to support her alleged incapacity to file her application within time.

[30] The statement by Ms Harris that the coronavirus pandemic created additional stress for her is not an exceptional reason to grant the extension.

[31] Neither individually or collectively, the reasons provided by Ms Harris cannot be considered exceptional for her failure to file her application within the 21-day period nor explain the subsequent 34 days.

[32] Having considered the evidence before me I am not satisfied that Ms Harris has made out acceptable explanations for the delay in lodging her application in order to justify an extension of time being granted.

[33] The reasons provided by Ms Harris do not weigh in her favour.

[34] Nevertheless, all factors in s.394 must be taken into account in determining whether there are exceptional circumstances.

Whether the person first became aware of the dismissal after it has taken effect

[35] Ms Harris was aware of her dismissal when it took effect. The termination of employment was confirmed in writing after her attendance at the show cause meeting.

Action taken to dispute the dismissal

[36] Ms Harris challenged her impending dismissal on 24 January 2020. In fact, before she left the premises, she understood her employment was terminated and she expressed that she would obtain advice because it was unfair. Despite this, she took no action to dispute her dismissal until she filed her application for unfair dismissal 55 days after her termination of employment.

[37] This consideration is not in her favour.

Prejudice to the employer

[38] The Respondent asserts the delay prejudices their position, 10 although no evidence of prejudice was submitted. I accept the application may be an inconvenience, however, I also accept that the absence of prejudice is not a reason for an extension of time.

[39] I consider this consideration neutral.

Merits of the application

[40] Ms Harris submits her termination of employment was unfair because she can verify her solid customer service, and the incident on 9 January 2020 was provoked by an abusive customer. She submits that Aldi has a responsibility to its staff to provide training to deal with abusive customers - training which she did not have.

[41] Further she submits her employer was aware of a previous incident with a manager which lead to her transfer to another store and her medical condition caused by a prior abusive relationship. Ms Harris tendered a medical certificate dated 30 August 2018 which confirms that her personal circumstances may have impeded her ability to communicate effectively due to panic attacks and anxiety. The medical certificate states that “her effort to communicate her distress may be misinterpreted by those not familiar with the presentation of anxiety in the workplace which leads to misunderstanding and discrimination.” 11

[42] Aldi submit that the merits of the application have little to no prospect of success, because the termination was due to serious misconduct, namely the Applicant’s acting aggressively to a customer, that she was not remorseful, and that her behaviour was contrary to its policies. Aldi relied on extracts from its Personal Behaviour and Customer Courtesy Policy, the show cause letter dated 24 January 2020 and the termination of employment letter also dated 24 January 2020.

[43] Ms Harris challenges the submission that she was not remorseful. She submits that at the time of the incident she was distraught by the verbal abuse at her, she also refers to the comforting comments received from staff and management. She describes the coaching she received post incident from a manager on how to deal with such situations in the future. Ms Harris submits that when she was asked during the meeting on 23 January 2020 whether she had regrets, she replied yes and explained the coaching she received. Ms Harris submits one of the manager’s present in the meeting admitted he was aware of her regret. Ms Harris submits the reference to being unremorseful in her letter of termination is untrue. 12

[44] In relation to the incident with the manager at the prior store, Aldi submit the Applicant made disparaging comments and behaviour towards him. 13 However, Ms Harris describes the reasons for her transfer due her medical condition and her manager’s criticism of her being too slow and not focussed.14 Aldi make no submissions regarding the medical evidence submitted by Ms Harris dated August 2018. No further evidence was submitted concerning the prior incident which occurred sometime in 2018, nor was there any evidence of its relevance to the dismissal in January 2020.

[45] Ms Harris also submits that the reason for her dismissal in her opinion is the fact that she took time off work due to having a bad back. 15

[46] The merits were not tested and remain contested. The evidence does not strongly favour either an arguable case or one with a low prospect of success. Aldi rely on a process where Ms Harris was called to respond to an incident 2 weeks after it occurred, Ms Harris was required to show cause the next day and was terminated on the same day. No evidence was advanced concerning whether the termination of employment for misconduct was balanced against the circumstances and the Applicant’s medical condition, nor were there adequate submissions concerning process. There was no evidence which suggested that the Applicant was denied a support person nor were details in the letter of termination disputed.

[47] In addition, further evidence concerning whether the Applicant even had a medical condition, as identified in 2018, was not advanced.

[48] The questions above can influence the merits of an application, therefore due to the lack of evidence, an assessment of merit cannot be made. Consequently, this consideration in my assessment is neutral.

Fairness as between the person and other persons in a similar position

[49] The Respondent relies on the conclusion reached in Whittle v Redi Milk Australia Pty Ltd, 16 where this consideration relates to the same employer and the same underlying issue. Further, it submits it has no other persons in a similar position. Ms Harris did not address this consideration; therefore, I find it neutral.

Conclusion

[50] In consideration of the time limit of 21 days as prescribed by the Act, the limit is applicable and should be complied with, except where there are exceptional circumstances warranting an extension of time.

[51] In this instance I need to be satisfied that there are exceptional circumstances to warrant a further period pursuant to s.394(3). To extend the statutory time frame is a strict test and rests on the circumstances of the case.

[52] In this case, the reasons cited by Ms Harris are not uncommon, unusual or extraordinary. Ms Harris provided reasons, but no evidence or compelling material to justify an extension of time.

[53] Having considered the evidence and submissions against each of the considerations in s.394(3), I am satisfied that on balance there are no exceptional circumstances for the extension of time to file the application for an unfair dismissal remedy.

[54] Accordingly, the matter is dismissed and an order to this effect is issued separately in PR719927.

COMMISSIONER

Appearances:

Ms Melanie Harris for the Applicant

Mr B. Dudley and Ms M. Oboodi for the Respondent

Hearing details:

2020
Melbourne (telephone hearing)
15 May

Printed by authority of the Commonwealth Government Printer

<PR719926>

 1   Respondent’s Response to unfair dismissal Form F3, Annexure 1.

 2   Applicant’s document list, attachment 2.

 3   Applicant’s outline of argument objections at Q1h and i, merit outline of argument at Q4c and exhibit A1.

 4   Applicant’s merit outline of argument at Q4a.

 5   [2011] FWAFB 975.

 6 Ibid at [13].

 7   Nulty v Blue Star Group Pty Ltd, [2011] FWAFB 975.

 8   Respondent’s outline of submissions at paragraph 9.

 9   Rose v BMD Constructions Pty Ltd[2011] FWA 673.

 10   Respondents outline of submissions paragraph 15.

 11   Exhibit A2.

 12   Applicant’s outline of argument objections at Q1h.

 13   Op Cit paragraph17 (d).

 14   Exhibit A1.

 15   Ibid.

 16   [2016] FWC 3773.