Melanie Hubbard v Quissa Pty Ltd T/A Covent Garden

[2021] FWC 4226

[2021] FWC 4226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melanie Hubbard
v
Quissa Pty Ltd T/A Covent Garden
(U2021/4672)

COMMISSIONER SIMPSON BRISBANE, 19 JULY 2021

Application for unfair dismissal –application lodged out of time –whether an extension of time should be granted

[1] On 28 May 2021, Ms Melanie Hubbard filed an application for unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (the Act) alleging her employment with Quissa Pty Ltd t/a Covent Garden (the Respondent) was terminated unfairly.

[2] Ms Hubbard provided on the Form F2 application that the date her dismissal took effect was 9 May 2021. Part 1.4 of the application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Ms Hubbard answered “Yes”.

[3] On 3 June 2021, the Respondent lodged a Form F3 – Employer response to unfair dismissal application and objected to the application on the basis it was made outside the time required in s.394(3) of the Act. The Respondent provided that Ms Hubbard’s mutually agreed last day of employment, which on her own request was Sunday, 02 May. The Respondent submitted therefore that the application was lodged four days out of time.

[4] On 15 June 2021, the chambers of Vice President Catanzariti sent email correspondence to Ms Hubbard stating that the Respondent had objected to the application on the basis it was out of time and invited the Applicant to provide a response to this objection by 18 June 2021.

[5] On 18 June 2021, Ms Hubbard sent email correspondence to the chambers of Vice President Catanzariti that provided as follows:

“My notice period was for 4 weeks ending on the 9th may 2021.

On the 25th april i sent an email to Cuba stating that due to my declining health and various stresses caused by unresolved issues i would prefer to have my remaining notice paid out. Cuba then proceeded to call me and ask me to continue working. I managed to work until 2nd may then on Tuesday 3rd I was forced to see my doctor as I was too ill to work and received a medical certificate saying I was unfit for work from 4th may 2021 until 14th may 2021.

Unfortunately this was the last week of my notice.

Therefore i still firmly believe my last day was the 9th May, my last week being covered by sick leave. therefore i am still of the understanding that my application was submitted in time.”

[original text kept]

[6] The matter was allocated to me to determine whether the application was lodged out of time, and if so, whether an extension of time should be granted to Ms Hubbard to file her unfair dismissal application. I issued directions for the filing of material and the matter was listed for Hearing on 14 July 2021 by telephone.

EVIDENCE

[7] Mr Jakub Krzyzanowski, the owner of the Respondent, provided a witness statement that was not challenged by Ms Hubbard. Mr Krzyzanowski said Ms Hubbard resigned voluntarily via an amicable email on Wednesday, 14 April 2021, with an intention to finish her employment on Sunday 9 May 2021.

[8] Mr Krzyzanowski said Ms Hubbard’s resignation was accepted in person the following day, in a constructive and amicable conversation, where he offered to give her any additional support, in order for the last weeks of her employment to be as smooth as possible.

[9] Mr Krzyzanowski said on Sunday 25 April 2021 Ms Hubbard subsequently sent him an email requesting to finish up her employment as early as possible. He said following this he contacted Ms Hubbard’s prospective replacement, Mr Enrico de Leon, by phone on Monday 26 April 2021 asking him to start his employment earlier than initially intended. Mr Krzyzanowski said as Mr de Leon was already committed to his previous employer until the end of April, he agreed to start from Tuesday 4 May 2021, a week earlier than initially anticipated.

[10] Mr Krzyzanowski said he then called Ms Hubbard to advise her that her replacement was happy to start a week earlier, meaning that he was in a position to accept her request to finish her employment earlier than initially anticipated. Mr Krzyzanowski said they mutually agreed that Ms Hubbard’s last day of employment was to be Sunday 2 May 2021.

[11] Mr Krzyzanowski said during that same phone conversation, he also offered to shorten trading hours, as well as reduce the available menu items and number of bookings for that last week, simply to further lessen the pressure it would put on Ms Hubbard.

[12] Ms Kellie Woodhead provided a statement for the Respondent that was unchallenged by Ms Hubbard. Ms Woodhead said she was a witness to a phone conversation between Mr Krzyzanowski and Ms Hubbard, which took place on Monday 26 April, during which Mr Krzyzanowski asked Ms Hubbard if she was able to work at Covent Garden for another week until Sunday 2 May, whilst the new head chef was still at his old job. Ms Woodhead said she could clearly hear Ms Hubbard agree “without much hesitation”. 

[13] Mr Krzyzanowski said on Tuesday 27 April 2021 he met with Mr de Leon, who accepted his letter of employment, upon which they moved on to discussing new menu planning and staffing requirements for the following week. He said aside from himself and Enrico, Kellie Woodhead was also present at that meeting.

[14] Mr Krzyzanowski said over the following fivedays, Ms Hubbard was very professional and continued to perform her usual tasks without any issues, all whilst she also proceeded to remove her own kitchen utensils and equipment from the venue as she would not need them anymore past Sunday 2 May.

[15] Mr Krzyzanowski said that upon finishing her last shift on Sunday 2 May, Ms Hubbard left the two sets of venue keys that were in her possession at the printer next to his laptop as witnessed by other venue staff. Mr Krzyzanowski submitted this confirmed that Ms Hubbard had no intention of coming back or working any further shifts with the Respondent.

[16] Mr Curtis Minns provided a witness statement for the Respondent that was not challenged by Ms Hubbard, that he said he saw Ms Hubbard leave the keys behind after her shift on 2 May 2021.

[17] Mr Krzyzanowski said that after recovering the keys, he also noticed that all of Ms Hubbard’s belongings that she would usually leave at the venue until her next shift were also removed from the venue, further confirming that it was indeed her last intended shift.

[18] Mr Krzyzanowski said that Ms Hubbard’s last salary payment along with all her leave entitlements was paid to her in the next regular fortnightly pay run, without any issues, delays or contentions from either side.

[19] The Respondent submitted that in view of the evidence above, it should be “beyond any doubt” that Ms Hubbard’s last day of employment was Sunday 2 May 2021, meaning the application was not made within the prescribed 21 days.

[20] Mr de Leon provided a witness statement for the Respondent that was also unchallenged by Ms Hubbard. Mr de Leon said that he commenced employment with the Respondent on Tuesday 4 May 2021. He said when initially discussing the new job opportunity with the Respondent, his employment was due to start the following week on 11 May, however, in a phone call received from Mr Krzyzanowski on Monday 26 April 2021, Mr Krzyzanowski requested him to start a week earlier, due to the previous Chef's request to finish up on Sunday 2 May.

[21] Mr de Leon said he and Mr Krzyzanowski subsequently met the following day on Tuesday 27 April 2021 to discuss new menu ideas, as well as officially sign the letter of offer, which confirmed the starting date to be 4 May 2021.

Oral evidence

[22] In relation to the alleged conversation between herself and Mr Krzyzanowski on 26 April 2021 whereby the Respondent claimed she agreed to work until 2 May, Ms Hubbard denied this. Ms Hubbard said she never met the other chef and had no idea someone else was starting. Ms Hubbard said she was kept out of all conversations and all she remembered was Mr Krzyzanowski asking her to keep working.

[23] In relation to Mr Krzyzanowski’s evidence that he offered to shorten trading hours or reduce available menus, Ms Hubbard said the only time trading hours were reduced were to suit Mr Krzyzanowski.

[24] Ms Hubbard accepted that she left her sets of keys at the Respondent’s premises at the end of her shift on 2 May 2021. When asked why she left the keys at the end of her shift, Ms Hubbard said she could not remember and was not in a good head space at the time she left.

[25] Ms Hubbard was invited to respond to Mr Krzyzanowski’s evidence that all of her belongings were removed from the venue on 2 May, further confirming she was intending it was going to be her last shift. Ms Hubbard said she had been taking her equipment home for over a week due to the way she was being treated, and that it was expensive equipment, and she didn’t trust leaving it at work.

LEGISLATION

[26] Section 394 of the Act provides:

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking 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.”

CONSIDERATION

[27] Based on the evidence I am inclined to accept that Ms Hubbard’s last day of employment was 2 May 2021.

[28] Mr Krzyzanowski’s evidence, which was unchallenged by Ms Hubbard was very clear in relation to the conversation on 26 April whereby he and Ms Hubbard agreed that her last day would be 2 May. This is supported by Ms Woodhead’s evidence, which also came in unchallenged, that she heard this conversation occurring and heard Ms Hubbard agree that her last day would be 2 May 2021.

[29] Ms Hubbard’s evidence in relation to this conversation on 26 April was vague. On Ms Hubbard’s own evidence, she left the keys behind on 2 May 2021 and I accept this is supportive of the view Ms Hubbard believed 2 May was going to be her last shift.

[30] I accept Ms Hubbard’s last day of employment was 2 May 2021. I therefore find her application was lodged four days out of time as the last date on which the application could have been filed within time was Monday 24 May and the application was not filed until Friday 28 May. I must now consider whether there are exceptional circumstances that arise to allow an extension of time for Ms Hubbard to file her application.

Extension of time

[31] The Respondent strongly opposed Ms Hubbard being granted an Extension of Time.

Reason for the delay

[32] Ms Hubbard gave oral evidence that the reason for the delay in filing the unfair dismissal application was that she was physically sick and not mentally capable to deal with the circumstances surrounding the end of her employment. Ms Hubbard said the way she was treated was very hard to deal with.

[33] Ms Hubbard provided a medical certificate dated 4 May 2021, which was the Tuesday following Sunday 2 May that I have found Ms Hubbard had agreed with the Respondent, was to be her last day of employment. The medical certificate merely states that Ms Hubbard was suffering from a medical condition and was unfit for work from 4 May to 14 May 2021 inclusive. This certificate did not provide any specific medical evidence as to why Ms Hubbard would have been unable to fill out and submit an unfair dismissal application in the Fair Work Commission by 24 May 2021.

[34] Ms Hubbard also provided a letter from a Doctor Hopkins at the Red Hill Doctors Surgery confirming that Ms Hubbard had been attending the practice and confirming that during two consultations on 16 March 2021 and 4 May 2021 Ms Hubbard complained about her stressful work environment where Ms Hubbard described long hours and feeling underpaid. Dr Hopkins said in the correspondence that she made a note that she thought the work situation was abusive. The correspondence also noted that Ms Hubbard had attended a colleague Dr Sandhu on 14 February 2021 as she had been unwell with Asthma and Dr Sandhu noted that Ms Hubbard was having her ‘sick days’ taken off as annual leave.

[35] Ms Hubbard also provided as an attachment with her Form F2 application an email indicating she had been receiving treatment for lower back, mid thoracic and neck pain since 2018 and the frequency of treatment had increased from July 2020.

[36] Letters in support of Ms Hubbard’s application were also provided by Mr Eric Hubbard and Ms Amanda Hansen and Mr Neil Byrne. Whilst these persons were not available to give evidence the letters were indicative of having observed a decline in Ms Hubbard’s health and wellbeing during her employment at the Respondent.

[37] Whilst there could be little doubt that the period leading up to and including the time of the ending of the employment relation was a stressful time for Ms Hubbard, so much so that she attended with her doctor two days later, I am not satisfied that Ms Hubbard was so incapacitated that she was unable to file the application by 24 May. The medical certificate was general in nature and expired on 14 May. There was no compelling evidence to explain the delay from 25 May to 28 May. The absence of explanation for any part of the delay, will usually weigh against an applicant in such an assessment and does in this case.

First aware of dismissal

[38] Ms Hubbard gave oral evidence that the conduct of the employer became too much and forced her to resign on 14 April 2021 giving four weeks’ notice which was to have expired on 9 May, but as has been found was brought forward by one week ending the employment relationship on 2 May. Whilst it has been submitted by Ms Hubbard that her employment remained on foot until the end of the initial notice period being 9 May, consistent with my findings above I am satisfied on the balance of probably that Ms Hubbard understood that her employment did end on 2 May. This weighs against extending time.

Any action taken to dispute dismissal

[39] Ms Hubbard did not provide specific evidence or submissions on this matter besides the action taken of the filing of the application to dispute the dismissal on Friday 28 May 2021, weighing against extending time.

Any prejudice to the employer

[40] Neither party gave direct submissions or evidence on this point. The filing of an application four days out of time is not a particularly lengthy delay and this is a neutral consideration in this case.

Merits of the application

[41] Ms Hubbard said the way she was being treated in the workplace was in a way nobody should be treated. Ms Hubbard said she was being lied to, spoken down to, and was told to suck it up and if this hadn’t occurred, she would still be working there.

[42] This is in clear contrast to the material provided in submissions from Mr Krzyzanowski which claims that the Respondent had tried to accommodate Ms Hubbard’s challenging behaviours and the other staff of the Respondent would attest to Ms Hubbard’s own aggressive and difficult behaviour.

[43] As these competing claims were not properly tested, I intend to treat these claims as neutral considerations, and this is consistent with the common approach of treating matters going to the merits as neutral in the absence of evidence.

[44] However, there is some uncontested material relevant to the second jurisdictional issue which in this case it is appropriate to afford some weight to. Ms Hubbard provided a written resignation on 14 April that was in fact complimentary of her employment which was accepted by the Respondent the following day. Ms Hubbard then proceeded to report for work during the first part of her notice period.

[45] Ms Hubbard then sent an email on 25 April asking if she could conclude her employment earlier, demonstrating that she worked part of her notice period. The evidence has established that Ms Hubbard and Mr Krzyzanowski then had a conversation on 26 April where it was agreed Ms Hubbard would continue work until 2 May finishing one week earlier then her initial four-week notice of her resignation. Mr Krzyzanowski’s unchallenged evidence was that Ms Hubbard proceeded to work until 2 May in a professional manner.

[46] Whilst not all evidence foreshadowed is before the Commission concerning why Ms Hubbard asserts that she was forced to resign, at least on a prima facie level based on the evidence already before the Commission, it is sufficient to indicate it will be a high hurdle for Ms Hubbard to be able to demonstrate that the termination was at the initiative of the employer, and not a voluntary resignation. This tends to weigh against extending time.

Employees in similar position

[47] It appears there was no evidence to suggest there were any employees in a similar position to Ms Hubbard and this is a neutral consideration.

CONCLUSION

[48] Having weighed each of the matters required to be taken into account in order to determine whether there are exceptional circumstances justifying an extension of time, I am not satisfied there are exceptional circumstances in this case and on that basis the application is dismissed.

COMMISSIONER

Appearances:

Ms M. Hubbard appearing on her own behalf.
Mr J. Krzyzanowski appearing for the Respondent.

Hearing details:

2021,
Brisbane:
July 14

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