Monique Maree Boyes v Amart Furniture Pty Ltd
[2023] FWC 2359
•14 SEPTEMBER 2023
| [2023] FWC 2359 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Monique Maree Boyes
v
Amart Furniture Pty Ltd
(C2023/4495)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 14 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection - application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – application dismissed.
On the 28 July 2023, Ms Monique Maree Boyes (the Applicant) lodged an application (the Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 15 June 2023 by Amart Furniture Pty Ltd (the Respondent) contravened her workplace rights. In its Form F8A response the Respondent raises a jurisdictional objection to the Application, that being it was made outside the statutory time period of 21 days (the jurisdictional objection).
Following allocation of the matter to my Chambers on 21 August 2023, Directions were subsequently issued to the parties for the filing of material in relation to the jurisdictional objection. The hearing to deal with the jurisdictional objection was listed for 13 September 2023.
At the hearing, the Applicant appeared on her own behalf and gave evidence while Ms N Visedo of the FCB Group was granted permission to appear on behalf of the Respondent pursuant to s 596(2) of the Act. Ms Visedo called Ms Renee Rowe, Store Manager of the Respondent’s Springvale Store, to give evidence.
At commencement of the proceedings the Applicant sought to introduce additional evidence by way of several statutory declarations that she said primarily went to the merits of her case but also went to the reasons for the delay in her filing her application. She advised that the deponents of the statutory declarations were not available to give evidence or to be cross-examined at the hearing that day. In those circumstances I declined to receive that additional material.
Background and evidence
The Applicant commenced employment on a casual basis with the Respondent on 17 November 2017 at its Frankston store. On or about 5 March 2023, the Applicant commenced in the full-time position of Assistant Manager at the Frankston store. She received a First and Final Warning on 28 April 2023 for attending work late on or about 19 April 2023, the effect her being late having been the store opening and commencement of trade being delayed by one hour.
Between the 9 & 24 May 2023 the Applicant requested that her employment status be changed to that of a casual team member. That request was acceded to by the Respondent and she was offered employment on a casual basis. On 24 May 2023, the Applicant accepted a full-time fixed term secondment to the position of Assistant Manager at the Respondent’s Springvale store ending on 16 June 2023. In that position the Applicant reported to the Store Manager Ms Rowe. According to the Respondent a further two incidents of the Applicant attending work late took place on 30 May & 10 June 2023, the latter incident resulting in the Springvale store being opened three minutes late by another Assistant Store Manager who while rostered off that day attended at short notice to open the store. The Applicant produced a medical certificate covering her absence for the 30 May 2023.
In relation to the 10 June 2023 incident, Ms Rowe stated during cross-examination that prior to 9.00am on 10 June 2023, she received calls from other staff who could not get into the Springvale store because the Applicant had not arrived for work. She says she immediately tried unsuccessfully to contact the Applicant by phone following which she called another Assistant Store Manager who was not rostered to work that day and who lived close by to the store. That Assistant Store Manager immediately went in to open the store while Ms Rowe also went into the store as soon as she was able to.
The Applicant stated during her evidence that she was also late on a number of other occasions, including the 10, 18, 23 & 24 May 2023 for which incidents she was not counselled or warned. When cross-examined on this point Ms Rowe could not recall the specific dates cited by the Applicant but believed that the Applicant had contacted her on those other occasions to alert her to the fact that she would be late to work. The Applicant also gave evidence that prior to her dismissal she had discussed with Ms Rowe the difficulties she was experiencing in working the Friday evening shift and then on the Saturday which required her to open the store at 9.00am. These difficulties she said were due to exhaustion and the travel time arising from her not holding a driver’s license. Ms Rowe agreed that the issue of the Friday/Saturday shifts had been discussed between them and that arrangements were put in place to support the Applicant including rostering of another Assistant Manager on the Saturday morning shifts.
As a result of the 10 June 2023 incident, the Applicant was suspended on full pay pending a disciplinary meeting conducted on 14 June 2023 to which the Applicant was invited[1]. The Applicant was accompanied by a support person. Attending for the Respondent were Ms Renee Rowe who is the Store Manager at the Springvale store and Mr Shaun Kiely who is Senior Store Manager for the Respondent. Ms Rowe participated on-line in the meeting via ‘Teams’ while the Applicant and Mr Kiely were in the same meeting room[2].
According to Ms Rowe, Mr Kiely informed the Applicant in the meeting that she had failed to commence several shifts on time at both the Frankston and Springvale stores[3]. The Applicant was subsequently informed by Mr Kiely that because of her conduct she was to be summarily dismissed with immediate effect[4]. A copy of the Disciplinary Meeting Record (DMR) confirming the dismissal was provided to the Applicant by Mr Kiely at the conclusion of the meeting[5]. The Applicant was requested but declined to sign the acknowledgement of the DMR as an accurate account of the meeting. Ms Rowe states that prior to the communication of the termination of her employment, the Applicant had been rostered to work on 15 June 2023[6] a point the Applicant disputes as she says she was not aware she had been rostered to work on 15 June 2023. In any event the Applicant did not present for work on 15 June 2023 or any subsequent day. The Applicant’s final pay was processed on 21 June 2023 and according to Ms Rowe, she was paid up to and including 14 June 2023[7].
Following her dismissal, the Applicant filed an unlawful termination application (C2023/4136) pursuant to s 773 of the Act on 15 July 2023. According to Commission records, Commission staff attempted to make contact by telephone with the Applicant on 17 July and 24 July regarding that application. Messages were left to the effect that the application was incomplete as a blank F9 had been received and that she may need to discontinue that application and file a different application. Commission staff subsequently sent an F50 to the Applicant on 28 July 2023 to enable discontinuance of the unlawful termination application which the Applicant completed and filed the same day.
In explaining the reason for the delay in her filing her general protections application the Applicant referred to the following matters;
·in the relevant period the Applicant says she was dealing with domestic violence in respect of which she states she sought to file an incident report with the police;
·claims that in the wake of her dismissal she had suffered loss or damage to both her phone and laptop and suffered financial hardship;
·she states she suffered from depression and was bed-ridden in the period following her dismissal but had been unable because of the limited time available to obtain medical reports to support her claim;
·she had sought advice from a lawyer on 15 June 2023 regarding her options and had undertaken some of her own research following advice from that lawyer on 16 June 2023 that her prospects were poor; and
·says that despite the legal advice received and her limited personal research, her level of understanding and awareness of the law and avenues to challenge her dismissal were limited.
When cross-examined in relation to the reasons for the delay in filing her application the Applicant stated the following;
·while stating that she had been incapacitated and bed-ridden in the period following her dismissal, she confirmed she had not attended a medical practice in the period following her dismissal;
·while unable to provide details, the Applicant confirmed that in the wake of her dismissal she made several job applications, those applications resulting in her gaining five interviews of which she only attended two interviews;
·agreed that on receiving a less than optimistic legal opinion of her prospects on 16 June 2023 she did not seek a second opinion but undertook her own limited research into general protections applications over several days; and
·conceded that her claimed lack of understanding or awareness of the legal avenues and processes to challenge her dismissal were not the main reason for the delayed application.
In relation to the merits of her claim the Applicant further stated during her evidence that;
·the Respondent was aware of her mental health challenges which she conceded had begun to adversely affect her work performance in a limited manner;
·the Respondent was aware of her not having a drivers license and the difficulties she experienced in getting to work;
·she had made a number of complaints to HR regarding her mental health issues;
·she had evidence of having sent text messages to her manager in relation to her being late for work although conceded that she had not provided those text messages as evidence in support of her case; and
·the Respondent treated her differently and unfavourably compared to other staff whose lateness for work was routinely tolerated.
Statutory framework
Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under section 365, it (the application) must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to section 366 of the Act.
The Act allows the Commission to extend the period within which a general protections dismissal dispute application can be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[8] Exceptional circumstances may 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 can be considered exceptional.[9]
The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
When did termination of the Applicant’s employment take effect?
The Applicant contends that her dismissal took effect on 15 June 2023 while the Respondent states the dismissal took effect on 14 June 2023. As revealed by the evidence of Ms Rowe, which was accepted by the Applicant, the Applicant was notified of her dismissal on 14 June 2023 in the meeting with Mr Kiely and Ms Rowe. The Applicant was also notified that the dismissal took immediate effect. That the Applicant was aware her dismissal took immediate effect on 14 June 2023 is evident by her non-attendance at work on or after 15 June 2023.
It follows from the foregoing that the Applicant’s dismissal took effect on 14 June 2023 and not the 15 June 2023 as contended by the Applicant. Therefore, the period of 21 days ended at midnight on 5 July 2023 and as the Application was made on 28 July 2023, it was filed 23 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.366(2) of the Act.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 5 July 2023. The delay is the period commencing immediately after that time until 28 July 2023, although circumstances arising prior to that day may be relevant to the reason for the delay.[10]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[11] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[12].
As set out above, the Applicant has cited several reasons for the delay in filing her general protections application. She stated that there was a lot going on for her in the wake of her dismissal which conspired to prevent her making an application at an earlier time. Those matters included her state of mental health, her being subject to domestic violence, the loss and damage of her laptop and phone, a lack of awareness of her rights and the legal processes, and her experiencing financial hardship.
Dealing firstly with the Applicant’s mental health, no medical evidence was produced in support of the claim that her mental health condition was so debilitating as to have prevented her from filing her general protections dismissal application at an earlier time than she did. The Applicant also conceded that despite her claimed condition, she had not attended a medical practitioner in the period between her dismissal and when she filed her general protections application on 28 July 2023. While I accept the Applicant may have some mental health challenges, there was no material filed in these proceedings that would persuade me that her condition was such as to have prevented her from filing her general protections application at an earlier time.
As to the Applicant’s claims of exposure to instances of domestic violence, there was no specificity provided by the Applicant as to the duration, timing and nature of that conduct, any police reports that had been made, any time off work taken as a result and any other external support sought that would support her evidence. Without seeking to diminish at all the significance and impact of domestic violence, the evidence before me provides a fragile basis on which to conclude that the behaviour the Applicant may have been exposed to by its timing and/or nature, was a factor that contributed to the delay in her general protections application being filed.
Turning to the claimed loss/damage to her mobile phone and laptop, the Applicant’s evidence again lacked any specificity in terms of when those items may have been lost or damaged and when they were repaired or replaced. The Applicant’s generalised claims of loss or damage to electronic equipment in the absence of compelling evidence such as receipts of repair or replacement are not persuasive.
As to the claim of financial hardship, I readily accept that the Applicant is likely to have suffered this in the wake of her dismissal. As to how that may have impacted or prevented her general protections application being made at an earlier time was not made clear by the Applicant. While financial circumstances may prevent a party from seeking legal advice or representation, it does not preclude an application from being made and an application fee waiver being sought. A fee waiver is in fact what the Applicant sought and was granted when she did file her general protections application. I do not accept that financial hardship provides an explanation for any of the delay in filing the general protections application.
Turning to the Applicant’s claimed lack of awareness or understanding of her legal rights and the process. The Applicant by her own evidence confirmed she had sought legal advice on 15 June 2023 which she received on 16 June 2023, which was to the effect that a claim by her would have limited prospects of success. In not accepting that advice she says she then did her own limited research into general protections claims over several days following that advice. To the extent that the Applicant may have lacked an understanding and awareness of her rights in the wake of her dismissal, she took steps to inform herself of her rights both by immediately seeking legal advice and then undertaking her own research. Those actions of the Applicant were entirely appropriate and do not support her claims that a lack of understanding or awareness prevented her from filing her general protections application at an earlier time. I do not accept that a claimed lack of awareness provides a credible explanation of the delay beyond the period in which she undertook her own research which she says occurred over several days after 16 June 2023.
Returning to the Applicant’s general claim that there was a lot going on after her dismissal which combined to prevent her from making her general protections claim at an earlier time, there are certain matters that tell against that claim. On her own evidence the Applicant had the capacity to seek legal advice and then undertake her own research into general protections claims. She also confirmed that she made several job applications although unable to specify how many or when. What is clear is that she succeeded in obtaining five job interviews although she says she only attended two of those interviews, the exact timing of which interviews was unclear. The conduct of the Applicant in seeking legal advice, undertaking her own research into general protections claims, applying for new roles and attending job interviews in the wake of her dismissal tells against a finding that the Applicant was incapacitated to the extent she was unable to file her general protections claim at an earlier time.
In the above circumstances I do not accept the explanations provided as having prevented the Applicant from lodging the general protections application on time or at a time earlier than the date on which this application was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant filed an unlawful termination application on 15 July 2023. Based on information provided by Commission staff, the Applicant subsequently withdrew that application on 28 July 2023. I note however that the unlawful termination application was also filed outside the 21-day period specified by s 774(1) of the Act. In circumstances where the action taken by the Applicant was also taken outside the 21-day time period I am not satisfied that these circumstances weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The Application was filed 23 days outside of the 21-day period. While the Respondent claims that it will suffer prejudice by reason of it having to deal with the out of time application, there is no material before me to suggest that the delay would cause significant prejudice to the employer if the application for an extension of time were granted. This factor weighs neutrally in my consideration.
Merits of the application
The Act requires me to take into account the merits of the Application in considering whether to extend time. The Applicant contends that she was dismissed for lateness to work in circumstances where she did not have a valid Victorian driver’s license and suffered from poor mental health, both of which circumstances she says the Respondent was aware. She further claims that senior management had falsified her hours of work records and that there was a culture of employees arriving late to work at the Springvale store for which there was no consequence and had been accepted. In conclusion she contends that in dismissing her the Respondent had engaged in discriminatory conduct as well as placing pressure on her to perform unrealistic and unachievable tasks.
The Respondent submits that the termination of the Applicant’s employment had been solely because of her repeated failure to attend work on time for which she had been previously warned. The Respondent goes on to contend that the Applicant has failed to make a prima facie case in respect of the allegations made pursuant to s 344 of the Act.
It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. As it is not possible to make any firm or detailed assessment of the merits, I am unable to conclude that the Applicant’s case lacks any merit. I also note the Respondent raises a prima facie defence. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the application for a general protections dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
M Boyes, Applicant.
N Visedo for the Respondent.
Hearing details:
2023.
Melbourne (via Microsoft Teams):
September 13.
[1] Exhibit R1, Witness Statement of Renee Rowe, dated 6 September 2023, at [2]
[2] Ibid at [2]
[3] Ibid at [3]
[4] Ibid at [4]
[5] Ibid at [5], Exhibit R2, Disciplinary Meeting Record (DMR), dated 14 June 2023
[6] Exhibit R1, at [8]
[7] Ibid [8]-[9]
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[9] Ibid.
[10] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[12] Ibid at [40].
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