Mr Marco Pronk v Woolworths Group Limited

[2019] FWC 6770

[2019] FWC 6770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Marco Pronk
v
Woolworths Group Limited
(U2019/6769)

COMMISSIONER SIMPSON BRISBANE, 1 OCTOBER 2019

Application for unfair dismissal – Jurisdictional objection –Application lodged out of time –– whether extension of time should be granted –exceptional circumstances– extension granted.

[1] This matter concerned an application made in accordance with section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. The application was made by Mr Marco Pronk who alleges his employment with Woolworths Group Limited (the Respondent) was terminated unfairly.

[2] On 19 June 2019 the Commission received a “Form F2 – Unfair Dismissal Application” from Mr Pronk. Part 1.5 of the Application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Mr Pronk answered on the Form F2 “Yes.”

[3] On 24 June 2019 a Notice of Listing was sent to the parties advising them that the application was listed for conciliation on 24 June 2019.

[4] On 5 July a Form F3 was filed by the Respondent. The Form F3 raised a jurisdictional objection that the application was filed out of time. The Form F3 included that Mr Pronk was advised at a meeting on 22 May 2019 that a decision had been made to terminate Mr Pronk, and at the meeting Mr Pronk was handed correspondence dated 22 May 2019 confirming that he had been terminated and he was to be paid his notice in lieu of working. It is not in dispute that Mr Pronk did not attend work after that day.

[5] The Form F3 also referred to email communications after 22 May between the parties. The Respondent stated it was prepared to participate in conciliation. The conciliation conference was unsuccessful.

[6] On 13 August 2019 correspondence was sent to Mr Pronk from the Chambers of Vice President Catanzariti and copied to the Respondent requesting a written statement explaining why an extension should be granted.

[7] On 20 August 2019 Mr Pronk sent by email to the Commission a two page document. The 20 August document refers to sections of the letter handed to Mr Pronk at the meeting on 22 May which include the following third and fourth paragraphs:

“After considering the additional response you provided in the meeting, we have made the decision to terminate your employment by giving you 4 weeks’ notice (underlining added) due to your conduct seriously breaching the safety policy resulting in a near miss, not following reporting procedure at the BRDC, Breach of the Code of Conduct, Woolworths values and the contractual duties of your employment contract.

Instead of being required to work during your notice period, you will receive four weeks’ pay in lieu of notice, (underlining added) plus payment of your accrued but untaken leave entitlements.”

[8] Mr Pronk also drew attention to the second last paragraph of the letter advising him that the Employee Assistance Program will remain available to him for 4 weeks.

[9] In the 20 August document Mr Pronk said that he contacted the Fair Work Commission (the Commission) at 4.34pm on 24 May 2019 enquiring about when the 21 days would start for considering all the factors in his situation, and claimed that he was informed that he would need to wait until his four weeks’ notice was finished before he could lodge his claim and that the 21 days would start from that date.

[10] Mr Pronk also referred to a series of emails after the meeting on 22 May. The chronology of emails is included as an attachment to the statement of Ms Jan Stevenson, the Respondent’s Employee Relations Specialist, and includes the following. At 8:48am on Wednesday 29 May Mr Pronk emailed team leader Mr Albi Missen as follows:

“Hi Albi,

I have only been paid $664.97, which is well short. I also can’t get into successFactors. I therefore can’t see if the boots claim is in this pay. With the 4 weeks’ notice, I am still technically staff. (underlining added) Could you please rectify my pay and access to SuccessFactors immediately.

Cheers

Marco Pronk”

[11] At 9.50am Mr Missen responded to the email of Mr Pronk as follows:

“Hey Marco,

SuccessFactors access is removed when the termination is initiated. (my underlining added) I’ve clarified this with People Services, you need to contact them to get any related information. I’ve also asked them about your pending pay for next week and there isn’t any info in there about a boot claim. Do you still have the receipt? If so I can work with Michelle to have it added into your final payout next week.

[12] At 10.04am Mr Pronk sent email correspondence to Mr Missen as follows:

“Hi Albi,

Thanks for getting back to me. I do have a photocopy of the receipt here at home, but i (sic) don’t have a scanner. I did give the original receipt to Sione & he put it in a lower drawer. This would all be easier if SuccessFactors was still accessible. I still had access to it on Monday, so I am not sure when this “termination is issued” came into effect. (underlining added) Is there a reason as to why I have been under paid this week? Also, what is with the “final payout”? Is that all happening next week with the balance of the notice & my entitlements or is the balance of my notice going to be paid weekly & then my entitlements after that, as mentioned in last week (sic) wednesdays meeting ? (underlining added)

Cheers

Marco Pronk”

[13] At 10.27am on 29 May Mr Missen replied as follows:

“Are you able to take a good photo of it? One which shows everything clearly and either email that to me or send it to me via text?

The termination was initiated in SuccessFactors on Monday afternoon which is probably why you could access it then but not now. (underlining added)

I also believe next weeks pay will include the 4 weeks notice and all your entitlements in one go. When I speak with Michelle about your safety boots I’ll ask her for clarification. (underlining added)

Regards,”

[14] At 10.39am on 29 May Mr Pronk responded in regard to the claim for boots and uniform but ended the email as follows:

“……..Will the EAP also be valid from 4 weeks notice or will that stop once the final pay is done?” (underlining added)

[15] At 11.15am on 29 May Mr Missen responded regarding the expense claims and then said as follows:

“…………..

You’ll have been short paid as technically your last day was on Wednesday 22^nd, you’ve been paid 4 hours for coming into work on your non-rostered day but you won’t have received anything for the rest of that week. (underlining added) Are you badly missing the money? If so I can ask about ad-hoc payment of your “In-Lieu” payment or even some of your annual.

The EAP is available for 4 weeks after termination of employment. I can enquire if this can be extended if you’d like.”

[16] At 11.37am on 29 May Mr Pronk responded as follows:

“mms sent. The boot claim should have appeared in SuccessFactors, & should be able to be seen by People Services. The pay should be that of my normal pay, & then pay after last wednesday’s termination of 4 weeks notice. Or does the 4 weeks notice start from monday, 27/05/19? This was not made clear. You could always take that out of my sick leave, as opposed to my annual leave. I was asking about the EAP as that is for employees, & if my termination/final pay is prior to the 4 weeks, would the service be cancelled prior to or not.” (underlining added)

[17] At 12.08pm Mr Missen responded again concerning the safety boots and then said as follows:

“….The 4 weeks notice is from your next rostered shift, which for you would have been friday 24th. However as the termination wasn’t initiated until Monday 27th the payment won’t go thru until the following pay cycle. (underlining added)

I’m not entirely sure on the date of the EAP cancelling however if you plan on using it I can ask them to keep it open longer if possible.”

[18] On the following day Thursday 30 May at 10.11am Mr Pronk sent an email to Mr Missen as follows:

“Hi Albi,

Could you please confirm what my official last day is with all this notice etc, as it is unclear. (underlining added)

Cheers”

[19] Further Mr Pronk said in his document of 20 August that in the Respondent’s Form F3 it is claimed that he was advised during the meeting of 22 May 2019 that his employment had been terminated, and yet the letter he was given stated that “…we have made the decision to terminate your employment giving you 4 weeks’ notice…”

[20] The matter was reallocated to my Chambers and was listed for directions on 3 September where it was settled that the Respondent would be given an opportunity to file material in response to the application, Mr Pronk would be given an opportunity file material in reply, and if necessary a hearing would be conducted on 30 September 2019.

[21] The Respondent filed a witness statement from Ms Stevenson and written submissions. Ms Stevenson’s statement included some material in relation to Mr Pronk’s employment history referring to his personnel file including warnings and final warnings for previous safety incidents.

[22] Ms Stevenson gave evidence concerning the meeting on 22 May by reference to the Respondent’s records however was not present at the meeting herself. Mr Missen and Mr Mulholland who attended the meeting on behalf of the Respondent did not give evidence.

[23] Ms Stevenson’s statement included that Mr Pronk was paid an amount of notice and accrued leave on 5 June 2019 which is 14 days after the 22 May 2019. This is consistent with the evidence of Mr Pronk concerning when his final payment was made.

[24] The Respondent’s submission maintained that Mr Pronk was dismissed on 22 May and by filing his application on 19 June 2019 he was eight days out of time. The Respondent maintained Mr Pronk has not demonstrated exceptional circumstances.

[25] The Respondent maintained that the employment ended on 22 May and relied on the letter of 22 May to say the Respondent clearly elected to pay Mr Pronk four weeks’ pay in lieu of his notice period instead of requiring him to work during his notice period.

[26] The Respondent submitted that even if the dismissal did not occur until 24 May or 27 May, Mr Pronk still filed his application out of time.

[27] The Respondent relied on the decision in Siagian v Sanel Pty Ltd 1in support of the proposition that the words “payment in lieu of notice” means that there is to be no notice and the employment is to end immediately. Further the Respondent submitted that Mr Pronk did not work again after 22 May 2019.

[28] The Respondent submitted exceptional circumstances require circumstances to be unusual or special and referred to the Full Bench decision in Nulty v Blue Star Print Group Pty Ltd 2.

[29] The Respondent also provided submissions on each of the elements of s 394(3) which I address below.

[30] On 24 September Mr Pronk responded to the material filed by the Respondent by stating that the last payslip he received is the pay period 27 May to 2 June 2019 and was paid on 5 June 2019. He submitted 21 days after 2 June is 23 June, and from receipt of the final payment on 5 June would be 26 June.

[31] Mr Pronk said he also received an SMS text message on 2 June 2019 for overtime. He submitted that he had tried to find out a clear date from Mr Missen but Mr Missen did not reply to his last correspondence.

[32] At the hearing Mr Pronk swore to the contents of the documents he filed on 20 August and 24 September 2019 and they were admitted as evidence. 3 Ms Stevenson’s statement was also admitted as evidence.4

[33] Section 394 of the Act provides:

“ Section 394 Application for unfair dismissal remedy

(2) The application must be made:

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

(b) within such further period as the FWCC 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 GWC is satisfied that there are exertional 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;

(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.”

Section 394(3)(a) – Reason for Delay
[34] The Respondent submitted that Mr Pronk had not provided a credible reason for the whole of the delay. It submitted its EAP program is provided to employees after termination. In relation to the emails between Mr Missen and Mr Pronk, the Respondent maintained that Mr Pronk was verbally told he was dismissed on 22 May and the emails do not change that.

[35] The Respondent further submitted if Mr Pronk was unclear on his date of dismissal and understood it was 24 or 27 May, he was still out of time. The Respondent relied on the email of Mr Missen at 11.15 on 29 May where Missen said “as technically your last day was on Wednesday 22^nd..”.

[36] Finally, the Respondent said Mr Pronk had not provided any records of what he discussed with the Commission and there is no evidence on which the Commission could form a view.

[37] Mr Pronk was the only person who attended the meeting of 22 May to give evidence and his evidence is to the effect that he understood from the meeting he was dismissed but he remained employed during the notice period. In viewing the letter provided to him during the meeting it is understandable that he may have been confused by what it meant. The correspondence does not state clearly that his dismissal was to have immediate effect. In the third paragraph the letter refers to giving 4 weeks’ notice, and then goes on in the fourth paragraph to say;

“Instead of being required to work during your notice period, you will receive four weeks’ pay in lieu of notice…”

[38] The Respondent did not call any evidence concerning what was said verbally at the meeting on 22 May so the only evidence concerning the meeting is the evidence of Mr Pronk.

[39] Mr Pronk gave evidence that he contacted the Commission on the afternoon of 24 May to seek advice about when the 21 days to file an unfair dismissal application applied from. Given Mr Pronk has given sworn evidence that this occurred, and in the absence of any evidence to contradict his claim I accept his evidence concerning the phone call. It can be inferred that the answer he received to his query was given on the basis that the question posed to the Commission staff member was based on the premise that he had not yet been dismissed but had been notified he would be dismissed, and he was advised that the 21 days would commence at the end the notice period. This is consistent with the impression he claimed to be operating under and is consistent with what appears to be his state of mind from the email exchanges between Mr Pronk and Mr Missen.

[40] I have set out in some detail the emails exchanged on 29 May and 30 May. It is apparent from the email exchanges that Mr Pronk was proceeding on the basis of his understanding that whilst he understood he had been terminated; he presumed he remained an employee during the notice period. What appears to have been unclear to him as at 29 May when he first emailed Mr Missen was when the 4 week notice period commenced from, and if he was going to be paid out in full at a future date, whether that would impact on his status as an employee and entitlement to the EAP service.

[41] Unfortunately Mr Missen’s responses did not clearly answer the issue Mr Pronk was seeking clarification on, namely when his notice period began and ended.

[42] Having considered all of the material, I am inclined to accept that despite the termination letter not explicitly saying that Mr Pronk’s termination was intended to have immediate effect, the words in the fourth paragraph of the letter do have that effect, meaning his application was filed out of time.

[43] However I am satisfied on the facts of this case the reason for delay does give rise to exceptional circumstances because the letter could have been more carefully crafted, the confusion on the part of Mr Pronk was understandable, his attempts to seek clarity from the Commission were misdirected (because he was operating under the impression he was still employed on 24 May), and his attempts to seek clarity from Mr Missen could have been dealt with more clearly by Missen.

[44] Further, the Respondent has not attempted to provide an explanation as to why it took 14 days to process the payment of notice pay given it says it terminated Mr Pronk on the 22 May 2019 but did not pay him notice until 5 June 2019. The Enterprise Agreement referred to in the Form F3 provides that wages are paid weekly. The delay in the processing of payment would only have served to further confuse Mr Pronk about whether he remained in employment or not.

[45] All of those things taken together led to Mr Pronk proceeding on the basis that when he filed his application on 19 June 2019 he believed it was within time when it was not. However the facts leading to the delay are not regularly, routinely or normally encountered, and are out of the ordinary, or unusual or special or uncommon.

[46] The reason for the delay tends to support the granting of an extension of time.

Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect

[47] The Respondent submitted that Mr Pronk was advised of the dismissal on 22 May 2019 when he was provided the letter of termination advising that he would “receive four weeks pay in lieu of notice, plus payment of his accrued but untaken leave.”

[48] The Respondent did not call direct evidence concerning what was said verbally at the meeting on 22 May, and Mr Pronk’s evidence was the only direct evidence from a witness to the meeting. As I have already indicated, it is understandable that Mr Pronk was confused about how to interpret the 22 May letter and proceeded on the basis his dismissal had not yet taken effect despite being told on 22 May he was being dismissed.

[49] The consideration in s.394(3)(b) tends to support the case for the granting of an extension.

Section 394(3)(c) – any action taken by the person to dispute the dismissal

[50] The Respondent submitted that Mr Pronk’s actions do not justify the delay and do not amount to exceptional circumstances. I have accepted Mr Pronk made a telephone call to the Commission on 24 May 2019 enquiring about the 21 day time frame for filing his application and on advising a Commission staff member that he had received four weeks’ notice was advised that the 21 days commenced after the notice period. The consideration in s.394(3)(c) weighs in favour of granting an extension.

Section 394(3)(d) – Prejudice to the employer

[51] While proceeding with the application may cause some inconvenience to the Respondent, it would not be sufficient enough to weigh in favour of not granting an extension.

Section 394(3)(e) – The merits of the application

[52] The Respondent contended that the substantive application is without merit given Mr Pronk had been dismissed for a safety incident and had previously been the subject of warnings and counselling in relation to safety. The determination of unfair dismissal applications requires the weighing of each of the consideration in s 387. For example, dismissals are on occasion found to be unfair despite a finding that there is a valid reason.

[53] Mr Pronk has raised matters concerning alleged insufficient training and support from management. The contentions in relation to the dismissal give rise to potential factual disputes that I should not give detailed consideration to as they go to the substantive case. I am satisfied that it is appropriate to regard the consideration under s394(3)(e) as a neutral matter.

Section 394(3)(f) – Fairness as between the person and other persons in a similar position

[54] The Respondent made a general submission that granting the extension would be unfair to employees in similar positions who have been precluded from filing and/or pursuing their applications. There were no specific examples of such unfairness referred. I will regard this criterion as neutral.

Conclusion

[55] I have taken into account each of the elements of s.394(3) of the Act. This matter gives rise to exceptional circumstances that would warrant the granting of an extension of time beyond the 21 day time limit. On that basis the application for an extension of time is granted and the matter will be listed for a further directions hearing.

COMMISSIONER

Appearances:

M Pronk, self represented.

V Hepburn, solicitor of MinterEllison on behalf of the Respondent.

Hearing details:

2019.

Brisbane.

30 September.

Printed by authority of the Commonwealth Government Printer

<PR712908>

 1 (1994) 122 ALR 333

 2   [2011] FWAFB 975

 3   Exhibit 1 and 2

 4   Exhibit 3