Melissa Conway v Boutique Nails & Beauty Hampton

[2019] FWC 7341

[2019] FWC 7341

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melissa Conway
v
Boutique Nails & Beauty Hampton
(U2019/7580)

COMMISSIONER LEE MELBOURNE, 7 NOVEMBER 2019

Application for an unfair dismissal remedy - extension of time - application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 30 August 2019. This matter involves an application made pursuant to s. 394 of the Fair Work Act 2009 (Cth) (the Act) for unfair dismissal remedy. Ms Melissa Conway (the Applicant) claims that she was unfairly dismissed from her employment with Boutique Nails & Beauty Hampton (the Respondent).

[2] There is a dispute between the parties as to whether the Applicant was actually dismissed from her employment on 18 May 2019. The Respondent disputes that there was a dismissal at all and has submitted that the employee resigned.

[3] For the reasons that will become apparent, it is abundantly clear that the Applicant was dismissed, within the meaning of the Act, in that there was a termination, at the initiative of the employer, on 18 May 2019. That being the case, the application for unfair dismissal remedy should have been lodged by 11 June 2019, which was the first available day, after 8 June 2019 which was a Saturday and the Monday, 10 June 2019 was a public holiday in Melbourne.

[4] The application was lodged with the Commission on 10 July 2019 and it was conceded by the Applicant that it is therefore 29 days outside of the statutory time limit.

[5] The application has been allocated to me for jurisdictional determination, on the question of whether to allow a further period of time for lodging the application, pursuant to s. 394(3) of the Act, and a hearing was conducted on 30 August 2019. At the hearing, the Applicant gave evidence on her own behalf, the Applicant’s mother gave evidence and Ms Nicole Bell, the owner of the Respondent, represented the Respondent and also gave evidence.

[6] Section 394 of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. Section 394(3) sets out that a further period for the application can be made by a person under subsection (1) taking into account the various factors, being:

(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.

[7] The evidence in the matter includes that the fact that the Applicant was employed by the Respondent on a casual basis. That is clear from the terms of the letter of engagement, which is dated June 2017. There is some uncertainty as to when the Applicant started, but the general view was that it was, at the latest, September 2017, and the relevance of that will become clear later in the decision.

[8] As previously stated, the letter of offer makes clear that the offer is for a casual position. It includes a provision that the days and hours are negotiable. It sets out initial hours of four hours on a Wednesday, five hours on a Friday, three hours on Saturday and that the the aim is to build up to near full-time hours.

[9] I do note, somewhat as an aside, that the letter of offer also sets out that Applicant is required to undertake various training, prior to working on clientele, that will be unpaid training on a selected weekend. Further, that the Applicant is also required to attend other training workshops, at her own cost. Some other training, for example, eyebrow extension training, was to be provided at no cost to the Applicant.

[10] It was not necessary, in the circumstances, to inquire into that matter further, but I simply make the observation that it is not apparent to me that there are any rights to direct an employee to engage in training, under the terms of the Hair and Beauty Industry Award 2010, which would be unpaid, and the Respondent would do well to examine its obligations in that regard.

[11] There are payslips of the Applicant, in evidence, that cover the period from 24 July 2018 to 27 May 2019. Ms Bell confirmed that they were generally representative as they provided an indication of the types of hours that were worked by the Applicant.

[12] Ms Bell also agreed that, generally, during her period of employment that when she offered suitable work to the Applicant, that the Applicant had generally made herself available to work at those times and Ms Bell also indicated that when work was offered to her, it was accepted on a regular basis and confirms that the Applicant had a reasonable expectation of continuing employment.

[13] The payslips, combined with the evidence of Ms Bell as to the nature of the employment relationship, which was not contested by the Applicant, strongly suggest that the Applicant was a casual employee who was engaged on a regular and systematic basis, who had a reasonable expectation of continuing employment.

[14] In those circumstances, and I made the observation, that the Applicant, having worked continuously for a period of greater than 12 months, in what is uncontested to be a small business, had the necessary jurisdiction to make an application for unfair dismissal remedy, independent of whether or not she was a part-time employee.

[15] Whilst the hearing was about determining whether or not I grant an extension of time, I simply made the observation that I have formed the view that it is more than likely that the Applicant was a casual employee, employed on a regular and systematic basis. However, even if I am incorrect on this point, and the Applicant was a part-time employee, it would make no difference as to whether or not an application could have been lodged within the 21 days after the dismissal.

[16] In that context, the Applicant would have had an opportunity, or did have an opportunity to lodge an unfair dismissal application and would have had jurisdiction at the time that she was dismissed. The Applicant’s claimed acquired knowledge, from someone who works in human resources, that she was a part-time employee is irrelevant, as to whether or not the Applicant could have made an application within the relevant time period.

[17] The Applicant resigned her employment on 13 May 2019. She provided notice of her resignation, in writing, in very clear terms and she provided notice that her last day of work would be Saturday, 1 June 2019.

[18] The next day, on 14 May 2019, the Respondent wrote to the Applicant, accepted the resignation and accepted that the Applicant would cease employment on 1 June 2019. It is clear from that document, that the Respondent is aware that the Applicant is leaving to commence her own business. The Respondent requested the Applicant not to mention to clients the fact she was leaving and that she does not contact any of the Respondent’s clients or copy any of their details.

[19] The Respondent undertakes, by way of that letter, to pass on the Applicant’s details to any client requesting them and she asks the Applicant to sign a document agreeing to those terms. At the hearing, the Applicant agreed that she did not sign those terms.

[20] At the hearing, I indicated and it has some relevance to my consideration of the merits, the fact that the Applicant did not sign the document does not change the appearance of that letter, being a direction from the employer to the Applicant to not do certain things.

[21] The Respondent claimed that the Applicant was overheard, on 18 May 2019, advising clientele of her resignation and new business venture. Ms Bell, when questioned about that at the hearing, was less sure of her evidence and indicated that people were whispering and she could not quite hear what they were saying, but did say that subsequent to 18 May 2019, she had received confirmation from customers that that had occurred, if not on that day, on other occasions.

[22] In any case, based on that and other factors that Ms Bell referred to in evidence, she verbally requested the Applicant cease work that day. The Respondent’s position is that the Applicant, in refusing the direction to not advise clients of her resignation and her new business was serious misconduct. The Respondent, however, also maintains that the Applicant resigned and was not dismissed.

[23] It is apparent that the employment was terminated at the initiative of the Respondent, on 18 May 2019. The facts of the matter are that the Applicant had indicated that she was resigning. The evidence strongly suggests that the Applicant was a regular and systematic casual employee. The Respondent has taken action to end the employment relationship on 18 May 2019 and, in doing so, has terminated the employment relationship on that date.

[24] Had the Applicant continued in her employment until 1 June 2019, or, in the alternative, if some notice period had been paid out in lieu of the Applicant working out until that day there would be a different proposition and the Respondent would not have terminated the employment. However, that is not the case.

[25] The Applicant agrees that the application is out of time by four weeks and one day, or 29 days. The Applicant’s reasons for lateness in lodging are, essentially, that she was unaware that under the terms of the Act, “I would be regarded as a permanent part-time employee” and that she spoke with friends who work in human resources and understand the legislation about what happened:

“How my employment was ended so suddenly and unexpectedly, I became aware I might have a claim, however I had to work extremely hard to get my business off to a flying start, in order to make up for the financial shortfall which was as a result of being constructively dismissed. As soon as I was able I lodged my claim.”

[26] I do not think the constructive dismissal point was really pursued and the basis upon which the Applicant had made the application was that an HR qualified person had told her that that is what she should say. It has no basis to it whatsoever on the Applicant’s own evidence.

[27] Mrs Conway, the Applicant’s mother, gave evidence to the effect that, which is relevant to the reason for the delay, that the Applicant was experiencing financial hardship in setting up her business, with two weeks’ of no pay, hence the delay in applying for the unfair dismissal.

[28] The Applicant agreed that she did not contest the dismissal at the time that it occurred.

[29] As set out above, s. 394(3) of the Act provides that a further period can be allowed for the application to be made if the Commission is satisfied there are exceptional circumstances, taking into account the factors set out at 394(3)(a)-(f) of the Act. The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) 1 where the Full Bench set out the meaning of “exceptional circumstances” and I will apply the principles in Nulty to the circumstances in this case.

“[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.

…..

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[30] While Nulty considered the term exceptional circumstances in relation to s. 365 of the Act, the discussion is applicable to the term in s. 394. I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

[31] I will now give consideration to s.394(3)(a) to (f) of the Act. Firstly, the reason for the delay. There is simply not an acceptable reason for the delay in lodging this application. The Applicant has referred to her becoming aware that she was a part-time employee. It is not abundantly clear whether the Applicant was part-time during her employment or should have been properly classified as part-time. However, in any case, whether or not the Applicant was part-time is irrelevant to whether or not she could have lodged an application at the relevant time. As mentioned previously, it would appear that the Applicant was a regular and systematic employee and, I think, likely to have been found to be within jurisdiction in any case, having been engaged for more than 12 months on that basis.

[32] The discovery, as the Applicant put it, that she may have access to unfair dismissal remedy, after talking to some people, well after the dismissal, is not an acceptable reason. Nor is the rather vague evidence that she was busy with setting up her business an acceptable reason.

[33] To the extent that the reason for the delay is a general lack of awareness of the status of the Applicant’s employment, or any other matter, it is well established that a lack of awareness of one’s legal rights is not generally considered an acceptable reason, without something more, and that was dealt with in the decision of Commissioner Roe in Susan Rose v BMD Constructions Pty Ltd. 2 There is no acceptable reason that weighs against granting the extension of time.

[34] The Applicant conceded she became aware of the dismissal on 18 May 2019, so she was aware of it immediately, that’s not a factor that weighs towards granting the extension of time. She concedes she took no action to dispute the dismissal, that also does not weigh in favour of granting an extension of time. There’s no prejudice to the employer which is a neutral consideration in the circumstances.

[35] As to the merits, I make the following observation, bearing in mind that the purpose of this proceeding is not to determine the merits of the matter, however the merits is something that needs to be taken into account.

[36] It is clear, on the facts, that there was a dismissal by the employer. To that extent the jurisdictional objection, is unfounded as the Respondent terminated the Applicant within the notice period. It was a summary dismissal, which raises issues as to whether the dismissal may well have been proportionate to the alleged misconduct.

[37] There is an arguable case of misconduct, where it is clear that the Respondent has provided a direction to the Applicant not to do certain things, in regards to revealing the fact of her leaving the Respondent and starting a new business. There could reasonably be a contest about the extent to which they constitute lawful and reasonable directions to the extent that whether requiring the Applicant to not speak of the fact that she is ending her employment at all is reasonable, I think is questionable. There is probably less contest to the extent of directing an employee to not tell the Respondent’s clients about the fact that the Applicant is setting up another business, that may well, more likely, to fall into the reasonable category.

[38] In any case, there are those factors that pertain to the merits of the case. Other factors relevant to the consideration of the merits of the case would be whether there was any procedural fairness. The dismissal was lacking in those features, given the nature of the way the conversation took place. There was not a clear indication, on the evidence of Ms Bell, as to the reason for the dismissal, beyond her feeling uncomfortable. This would all be taken into account.

[39] The well-held position is that when considering the merits the Commission may consider whether the employee has a sufficient case. The Commission cannot make any findings on contested matters without hearing evidence that relate to the findings. Evidence on the merits is rarely called in an extension of time hearing, and that was generally the case at the hearing.. While there was some evidence on it, it was not a thorough examination and nor should it be. As a result of this, the Commission should not embark on a detailed consideration of the substantive case.
Therefore, on the material before me, the Applicant is not without a case and, to that extent, weighs slightly in favour of granting an extension of time.

[40] As to fairness between the Applicant and other employees, nothing cogent was put on that point.

[41] Taking into account all of those factors, there is not an acceptable reason for the delay and that weighs against granting the extension of time. All the other factors are neutral considerations, leaving aside the merits of the case, which weigh slightly in favour of granting an extension. However, such factors do not, when taken into account against the lack of any acceptable reason for the delay, and taking into account all those other factors, lead me to a point of being able to find that there are exceptional circumstances.

[42] In conclusion, taking into account all the relevant factors in s. 394(3)(a) to (f) of the Act, I am not satisfied that there are exceptional circumstances that would warrant allowing a further period for the making of an application for unfair dismissal remedy. I refuse the grant the extension of time and the application is therefore dismissed.

COMMISSIONER

Appearances:

Ms M Conway for the Applicant

Ms N Bell for the Respondent

Hearing details:

2019

30 August

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 2   [2011] FWA 673