Miss Terri Moses v TattsBett Limited
[2013] FWC 5043
•31 JULY 2013
[2013] FWC 5043 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Miss Terri Moses
v
TattsBett Limited
(C2013/3687)
COMMISSIONER BOOTH | BRISBANE, 31 JULY 2013 |
Application to deal with contraventions involving dismissal - extension of time.
[1] This is an application brought under s. 365 of the Fair Work Act 2009 (the Act) to have a dispute about dismissal dealt with by the Fair Work Commission.
[2] The Applicant, Miss Terri Moses filed her application on 22 March 2013. The Respondent, Tattsbet Ltd, a licensed provider of betting services, resists the application on the ground that the application was filed out of time and asks that this jurisdictional point be dealt with prior to the substantive matter.
[3] After directions and a short hearing, at which Miss Moses represented herself, Tattsbet was represented by Ms Cheryl-Anne Laird of Livingstones and Tattsbet’s HR Manager, Ms Julie Capstaff, and an exchange of submissions on the jurisdictional point, the parties agreed to the preliminary question being determined on the papers.
[4] An application under s.365 must be made within 21 days after the dismissal took effect. The Commission may allow a further period of time in exceptional circumstances. Section 366 provides:
366 Time for application
(1) 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).
(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.
[5] While this jurisdictional point is not concerned with the lawfulness or fairness of Miss Moses’ dismissal, it is concerned with the precise date on which her dismissal took effect, and that depends in part on when she was given notice, if at all, of being dismissed.
[6] The parties dispute the relevant facts on this point.
[7] The Applicant says her employment was terminated on 12 March 2013, ten days before she brought the application. The Respondent submits the dismissal took effect on 30 January 2013, a date that required an application on or before 20 February 2013. If this is correct, Miss Moses’ application would be 30 days out of time.
[8] Tattsbet says in the alternative that the Applicant was dismissed on 26 February 2013 in which case the application would be 3 days out of time.
[9] It is not immediately apparent from the Applicant’s material what event took place on 12 March 2012 that evidences her dismissal. It is clearly the last date on which she finally considers herself to have been in Tattsbet employment. It is also two weeks (the notice period applicable to Miss Moses) after the alternative date for dismissal offered by Tattsbet.
[10] Miss Moses engaged in extensive communication with Tattsbet about her work status from October 2012 when ill health affected her work. She received some return communication.
[11] The following chronology includes the key communications and, where relevant, some commentary on them:-
Date | Particulars |
on or about 7 June 2010 | Miss Moses employed as casual telebet operator by Tattsbet. |
31 Dec 2010 | Miss Moses says in her application she was “put on permanent”. Tattsbet appears to consider Miss Moses to have been a casual employee for her entire tenure. |
6 Oct 2012 | Applicant has meeting with Ms Everton of Tattsbet to discuss health issues and deposes she was advised that absence due to ill health was not an issue if covered by medical certificates. Discussed available sick leave with Ms Helion of Tattsbet. |
3 Nov 2013 | Applicant’s then husband leaves telephone message advising Applicant’s unavailability “for my up coming shifts for this roster, which included Melbourne Cup Day”. He emails advising that Applicant unavailable “this weekend” due to illness. |
15 Nov 2012 | Applicant’s email: Have I been removed from the online roster for upcoming shifts due to my illness and recent time off work? |
20 Nov 2012 | Applicant’s email: Does this mean I have been fired? Ms Helion’s email: No you have not been fired, you just need to provide certificates for the blocked days and Melbourne cup day before we can place you back on the roster. |
21 Nov 2012 | Applicant deposes to have sent medical certificates by post. |
7 Dec 2012 | Applicant deposes sending second copy of medical certificates by post, and enquiring of Ms Everton as to her rosters. |
31 Dec 2012 | Applicant deposes to receiving a text message offering her a roster on 6 January 2013, but that the roster was deleted. The Respondent submits this was an automated system error. |
4 Jan 2013 | Applicant deposes she spoke with Ms Helion and Mr Close by telephone. Mr Close asked for a further copy of medical certificates. |
9 Jan 2013 | Applicant emails third copy of medical certificates. (No reply fromTattsbet) |
11 Jan 2013 | Applicant’s email to Mr Close: I did hear back from you yesterday or today with regards to my shifts, there in I am assuming that I have not rostered a shift for this weekend [sic] … I no longer have access to our roster system on line so I am unable to check if I was rostered a shift. |
30 Jan 2013 | Applicant follows up with Mr Close by email regarding email of 11 January: You mentioned the last time that we spoke that you were going to look into my shifts etc and get back to me. I am still yet to hear back from you or anyone at Tattsbet regarding my shift … if I have been fired from [sic] my job with Tattsbet or let go would you be kind enough to advise me please. Mr Close responds by email advising the Applicant we cannot offer you any shifts in the future – see below. |
8 Feb 2013 | Applicant deposes to asking Tattsbet for Ms Everton’s email address (which was not provided) and to sending to her (presumably by post) a fourth copy of medical certificates and an outline of events. Neither is in evidence. |
20 Feb 2013 | Applicant’s email: I constantly called and emailed the account betting team to enquire why I had no shifts and I again advise that every single of day of my days off, [sic] I had a medical certificate … I please request reconsideration and confirmation of the termination of my much loved job. I simply cannot understand why this has happened and am very saddened by your email. |
26 Feb 2012 | Applicant’s email: Can you please confirm if I have had my employment completely terminated with Tattsbet? I am hoping this is not the case, but if so, I will organise to send back my door pass and car park pass ticket. Mr Close’s email: Terri, Please send back your passes. Regards … Miss Moses says she never received this email, and the “from” and “to” fields in the exhibited copy both display jumbled email addresses. However, she quotes from this email in her application. |
27 Feb 2012 | Applicant’s email: Can you formally confirm that I have had my employment terminated please? (No response from Tattsbet) |
6 Mar 2012 | Applicant’s email: “Can I please have a response to my email” of 27 February 2012. (No response from Tattsbet) |
12 Mar 2013 | Applicant deposes “Requesting a reply to my emailed concerns and confirmation of my employment” but does not adduce evidence of that communication or the form it took. |
[12] The Applicant exhibited medical certificates for the periods 13 to 15 October 2012 and 27 October 2012 to 1 Dec 2012 along with a certificate of fitness to return to normal duties from 31 Dec 2012.
[13] Mr Close deposes that on receipt of the Applicant’s email of 30 January 2012 he discussed the situation with his manager and that the manager decided that Miss Moses would not be offered any more shifts. He exhibited to his statutory declaration the following email response from him to Miss Moses:
We have on record a No Show for Saturday 14th of November and Melbourne Cup Day, both blocked days.
We did not hear from you until around the 9th January, two months later when you sent your medical certificates.
A single no-show on a blocked day is, by precedent over many years, grounds for serious action. Considering the above we cannot offer you any shifts in the future.
[14] The 14th of Nov in 2012 was Wednesday, not Saturday. Maybe little turns of this error, but it is indicative of the apparently casual approach taken by Tattsbet in this matter. I also note there is no explanation of what a ‘blocked day’ means.
[15] The Respondent does not address the error in the date in this email. Mr Close did provide a further undated statutory declaration correcting typographical errors to two dates in his earlier evidence where he listed Miss Moses’ “no show” dates with reference in two instances to 2011 instead of 2012. The full, corrected list of alleged no-show dates is as follows:
(a) Saturday 29 October 2011
(b) Sunday 13 May 2012
(c) Saturday 23 June 2012
(d) Sunday 30 Sept 2012
(e) Sunday, 14 October 2012 and
(f) Tuesday 6 November 2012 (Melbourne Cup Day)
[16] Miss Moses contests some of these dates and explains others, a matter that goes to her substantive claim, relevant here only for s.366(2)(d) as to the merits.
[17] The Applicant also drew the Commission’s attention to the Tattsbet Limited Administration and Customer Services Collective Agreement 2012 (the Tattsbet Agreement) that provides for termination of employment by the employer on two weeks’ notice for an employee of Miss Moses’ period of service, whether casual or permanent. Payment in lieu of notice may be paid if notice is not given. It may be that Miss Moses expected notice of her dismissal to address the notice period.
Discussion
[18] Subject to any statutory requirements, a contract of employment may be terminated by giving valid, reasonable notice. 1 The Act and the various industrial instruments under it set out certain obligations, including the Tattsbet Agreement’s notice provisions. Valid notice of termination must be sufficiently certain about when the termination takes effect.2
[19] On the material before me, Miss Moses was, by 12 March, in no doubt that her employment relationship with Tattsbet was over, but it seems she remained uncertain whether she had been dismissed before that date. The test is not her own view, but an objective test relative to the dealings between the parties:
To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable. The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties [references omitted]. 3
The email of 30 January
[20] The Respondent relies on the email of 30 January 2013, the substance of which is quoted above, as effecting termination. The Respondent emphasises the following words: “we cannot offer you any shifts in the future.” The emphasised words are in the context of a no-show being “grounds for serious action”. What constitutes “serious action” is not explained in evidence, nor, it seems, to Miss Moses.
[21] This email was sent in the context of Miss Moses’ requests for further shifts, the lack of action by the employer to retrieve the work-related passes, the text message rostering shifts (erroneous or otherwise), and the subsequent conduct of the Applicant in seeking clarification.
[22] The earlier emails are important in understanding the context of the statement in this email. Miss Moses explicitly asked in November 2012 if her lack of shifts meant she had been “fired” for not working on Melbourne Cup Day due to illness. She was told in very clear terms by the Respondent:
“No you have not been fired … you just need to provide certificates”.
[23] She submits she provided the certificates by post the next day, and at least twice more.
[24] The email of 30 January mentions Melbourne Cup Day and another date that does not make sense. It would be reasonable for an employee in Miss Moses’ position to expect a notice of termination to be expressed in clear terms and maybe to refer to the notice period. The email of 30 January is not a clear, unambiguous communication of termination referrable to a certain date, especially given the earlier express assurances that the no-show on Melbourne Cup Day had not resulted in her dismissal.
[25] The context is also informed by Mr Close’s evidence that an unnamed manager had made a decision that no further shifts would be offered to Miss Moses. An on-the-spot decision appears to lack the procedural fairness that a large employer such as Tattsbet would prudently provide, especially in dismissal without notice.
[26] I am not satisfied that the email of 30 January, given all the surrounding circumstances, had the effect of dismissing her from that day.
The email of 26 February
[27] The Respondent alternatively submits an alternative termination date of 26 February 2013, based on the email exchange between Miss Moses and Mr Close, in which she asks explicitly if her employment has been terminated and if so, offers to return her work related passes. Mr Close responds curtly: “Please send back your passes”. The two emails taken together appear to show the employment relationship is over. A reasonable person in Miss Moses’ position, with knowledge of the background dealings should objectively understand that she will receive no further work from that date.
[28] Miss Moses says in her Submissions that Mr Close’s email was not received. Those submissions were emailed on 24-25 June in various emails to my Associate: she was clearly experiencing email difficulties at that time. The copy in the Respondent’s evidence has garbled email addresses. Yet Miss Moses refers to the content of this email in the application filed on 22 March.
[29] Nonetheless, Miss Moses continued to ask about her employment relationship in her emails of 27 February and 12 March, pointing to an ongoing subjective understanding (or maybe hope) on her part that her employment had not been terminated.
[30] On balance, I think more likely than not that Miss Moses received the email of 26 February, and that it constituted an answer to her question of whether or not she was dismissed. I conclude that the Applicant was dismissed from her employment with effect from 26 February.
[31] That conclusion means her application was brought 3 days out of time.
[32] I therefore turn to the question of whether time should be extended because of exceptional circumstances as provided by s.366.
Exceptional circumstances
[33] The operation of s.366 was considered in detail in Nulty v Blue Star Group Pty Ltd, 4 (Nulty) to which I was referred, along with other cases, by the Respondent. From that case, “exceptional circumstances” takes its ordinary meaning, and mere ignorance of time limits cannot amount to exceptional circumstances. A finding that exceptional circumstances are made out enlivens a discretion that the Commission may then exercise, having regard to all the circumstances, “a consideration of whether, given the exceptional circumstances, it is fair and equitable that time should be extended.”5
[34] I examine each of the statutory factors in turn.
(a) The reason for the delay
[35] The Applicant has not made specific submissions on her reasons for delay. This may arise in part from her subjective belief that she was dismissed effective from 12 March, and therefore her application was in time, rather than being dismissed on either of the earlier dates suggested by Tattsbet.
[36] The Respondent seeks to explain the Applicant’s various emails and submissions as demonstrating that she well knew of her dismissal at the earlier date. The Applicant is clearly not a practiced author. Such fine syntactical analysis appears to be drawing too much from her attempts to understand when, or if, she would next be awarded a shift. It is important not to draw too much from fine analysis in jurisdictional questions, consideration that rightly belongs in the substantive hearing. After all, there are also errors in the Respondent’s material.
[37] I conclude that the Applicant did not understand that Tattsbet had dismissed her, but was not offering her shifts pending clarification of her ill-health absences. She genuinely did not consider that she had been dismissed, even on 26 February, and subjectively was not delaying. This conclusion is reinforced by her submissions that:
I was never formally fired … Tattsbet never did, and never have advised that my employment was completely terminated nor was I given 2 weeks notice, I simply had my shifts reduced then taken away altogether.
[38] As shown in Nulty, misapprehending the law does not amount to exceptional circumstances. However, I think on balance that the course of conduct between the parties, the failure of the Respondent to express itself clearly over many months, the early support and assurances she received in the face of her illness and the clear statement that she had not been dismissed because of the Melbourne Cup Day absence tip the scales in the Applicant’s favour on this factor.
[39] Further, a three day delay is short, especially given the confusion of the previous five months.
[40] Even if I am wrong as to the effect of the email of 30 January and subsequent email exchanges, I consider that the delay, in all the circumstances, is understandable and does not weigh against this Applicant, an employee who emerged from illness to confront an employer that failed to express clearly its determination, made apparently without procedural fairness, to dismiss her.
(b) Any action taken by the person to dispute the dismissal
[41] The Respondent asserts that Miss Moses “has been less than diligent” after the email of 30 January 2013. But on her evidence, she called, emailed and posted on numerous occasions. She subjectively believed that she was still employed and was taking steps to satisfy her employer’s demands for medial certificates. She could never have been aware that Mr Close and his manager met to discuss her fate on 30 January. Contrary to the Respondent’s assertions, I find that Miss Moses was persistent and diligent in seeking to dispute her employment status, not understanding that, from Tattsbet’s perspective, she would no longer be offered shifts, and therefore, it seems, dismissed.
(c) Prejudice to the employer
[42] The Respondent submits that it is prejudiced if time was to be enlarged because “the Respondent would be faced with the burden of defending an Application that is without merit.” That is not the test: s.366(2)(d) deals separately with merit.
[43] In this case, I can find no factor in the evidence that indicates prejudice, after careful contemplation of the circumstances as explained to me by both parties. There are no difficulties with witnesses. Records are still readily available. Effluxion of time does not deny the Respondent a fair hearing. Tattsbet has not been taken by surprise by the claim. The delay is merely three days based on the 26 February date.
[44] There is no prejudice to the employer if time is extended.
(d) The merits of the application
[45] The Applicant’s material suggests that the Respondent took adverse action against her, by reducing and then terminating her shifts and ultimately dismissing her because she took advantage of her entitlement to sick leave. The Respondent has points in rebuttal, but they do not lead to a conclusion that the Applicant’s case has little or no merit or is bound to fail. On the contrary, the evidence, such as it is in this jurisdictional matter, leads me to conclude that the Applicant has an arguable case.
[46] The Respondent argues that I should draw a Jones v Dunkel 6 inference against the Applicant in regard to her ex-husband and certain telephone records not produced in these proceedings. That argument is misplaced, as are the detailed submissions as to credit based on inconsistencies and errors in the Applicant’s submissions. And as already noted, the Respondent’s material is not without error.
[47] The application does not lack merit when careful consideration shows an arguable case.
(e) Fairness as between the person and other persons in a like position
[48] The Respondent merely asserts the Applicant received similar treatment, and adduces no evidence. Miss Moses appears oblivious to this factor and likewise offers no evidence. I have no basis on which to judge the treatment of employees on sick leave, other than Miss Moses’ evidence about her manager in October 2012.
[49] This factor must be neutral in the context of exceptional circumstances.
[50] I find that exceptional circumstances exist based on the preceding analysis of all the statutory factors.
Conclusion
[51] Miss Moses claims she was subjected to adverse action because she utilized her sick leave entitlements, and she was denied shifts, and ultimately unfairly dismissed, as a result.
[52] Tattsbet says Miss Moses was dismissed on either 30 January or 26 February and her application for general protections is out of time, with no exceptional circumstances, and should be dismissed accordingly.
[53] The merits of the matter are not considered here (except for the purposes of s.366(2)(d)).
[54] I have found the Applicant was dismissed with effect from 26 February 2013 and filed her application for general protections 3 days out of time. I have also found on balance that exceptional circumstances exist.
[55] The next step is to consider whether “given the exceptional circumstances, it is fair and equitable that time should be extended” to adopt the words in Nulty.
[56] Having carefully considered all the circumstances surrounding the dismissal I find that it is, and exercise the discretion to allow extra time.
[57] An order will issue accordingly.
COMMISSIONER
1 Neil, I. & Chin, D. (2012) The Modern Contract of Employment. Sydney: Lawbook Co, pp228-234.
2 ibid par 11.06 and authorities cited therein.
3 Fardell v Coates Hire Operations Pty Ltd [2010] NSWSC 346 at paragraph 82.
4 [2011] FWAFB 975.
5 [2011] FWAFB 975 at paragraph [15].
6 [1959] 101 CLR 298
Printed by authority of the Commonwealth Government Printer
<Price code C, PR539374>