Mr Thomas Walsh v Who Cares? We Care! Pty Ltd
[2023] FWC 1017
•4 MAY 2023
| [2023] FWC 1017 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Thomas Walsh
v
Who Cares? We Care! Pty Ltd
(U2023/2593)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 4 MAY 2023 |
Application for an unfair dismissal remedy – application made outside 21-day timeframe – circumstances not exceptional.
Mr Thomas Walsh made an application for an unfair dismissal remedy pursuant to s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 28 March 2023. The respondent, Who Cares? We Care! Pty Ltd, objects to the application on the basis that the application was not filed within 21 days after the dismissal took effect.
Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3). This decision deals with the issue of whether the Commission should allow Mr Walsh a further period of time to lodge his unfair dismissal application pursuant to s 394(3) of the Act.
For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend time is not enlivened. The respondent’s jurisdictional objection is upheld and Mr Walsh’s application for an unfair dismissal remedy is dismissed.
Background and factual findings
The respondent provides personal care, home help, transport and respite services to its clients within their own home.[1] Mr Walsh commenced employment with the respondent on either 24 June 2022[2] or 28 June 2022.[3] Mr Walsh was employed on a casual basis[4] as a gardener.[5] Mr Walsh’s role involved attendance at properties of the respondent’s clients and the provision of gardening services on site. Many of the respondent’s clients have dementia or are otherwise elderly and in need of at home assistance.[6]
Mr Walsh’s partner was an employee of the respondent from in or around 2010 until she resigned on 10 February 2023.[7] It appears that Mr Walsh’s partner was involved in the process of securing the employment opportunity for Mr Walsh with the respondent, with full disclosure of their relationship.[8]
Mr Walsh underwent an induction with the respondent on 27 June 2022. The induction was conducted by Ms Tracy Forbes, the general manager for the respondent. Mr Walsh was advised during the induction that if a client did not answer their door, a shift went longer than anticipated or he was not able to work he should contact the respondent’s office or the out of hours contact which the director of the respondent, Ms Jaqueline Faulds, monitors 24 hours a day. Mr Walsh signed a document on 27 June 2022 confirming his attendance at the induction and the matters that were discussed.[9] The respondent also produced an extract from its handbook which details, amongst other things, the steps to be taken by an employee if a client does not answer the door, if a shift cannot be performed, and rostering matters including the significance of early notice in the event of unavailability to attend a shift.[10]
On 26 July 2022 Ms Forbes emailed Mr Walsh seeking, amongst other things, a police check.[11] Ms Forbes sent a follow-up email on 29 August 2022 to Mr Walsh highlighting the importance of the police check.[12] On 18 November 2022, Ms Forbes sent Mr Walsh an email which stated “I really need your police check for your records Please. Send it as soon as possible.”[13] The issue remained unresolved for the duration of the employment relationship.
On 3 February 2023, Mr Walsh had been provided with a roster containing two clients, the first scheduled for 12:00pm for 30 minutes and the second scheduled for 1:00pm. Mr Walsh confirmed this roster with the respondent. The first client requested Mr Walsh walk her dog in addition to his usual gardening duties, which Mr Walsh’s partner seemingly allocated to Mr Walsh as he was fond of the client.[14] At 3:00pm Ms Faulds received a telephone call from a case manager enquiring as to Mr Walsh’s non-attendance. Ms Walsh and other employees of the respondent attempted to contact Mr Walsh but were unsuccessful.[15]
Mr Walsh telephoned Ms Faulds at 3:45pm. Mr Walsh was purportedly difficult to understand,[16] but the respondent’s evidence in respect of the call is in summary as follows:
(a) Mr Walsh said he did attend to the clients;[17]
(b) Mr Walsh said the client did not open the door;[18]
(c) Mr Walsh said the clients were hardly ever home;[19]
(d) Mr Walsh said he had told his partner to pass on that he was not going to see one of the clients, though the respondent was on notice that Mr Walsh’s partner was taking annual leave on 3 February 2022 and no communication was received from her;[20] and
(e) Mr Walsh said he had made an “executive decision” to cancel the shifts.[21]
The respondent also submits that Mr Walsh attempted to blame Ms Forbes for his non-attendance because Ms Forbes usually called Mr Walsh on the days on which he was rostered to work, but that this was never the respondent’s practice.[22]
Mr Walsh submits that he did not complete the shifts because of “inclement weather.” Mr Walsh was also concerned with the dog walking component of the shift, which was not part of his normal duties, and considered that the second client had very little work that needed to be completed.[23]
Ms Faulds emailed Mr Walsh on 5 February 2023. The subject of the email is “Termination of Position with Who Cares? We Care!” The email relevantly states as follows:[24]
“I am writing this email to you in regards to the situation that occurred on Friday. At approx. 2:30pm I received a phone call from Marilyn, Donald Smith’s Case Manager. She asked me why you had not attended to Donald’s home to provide the gardening service at 1pm. I explained to her I had not heard from you to say that you were not attending so I said I would call you to find out what had happened. I called Ting first, the client you had scheduled at 12noon, to see if you had attended for her service, to which she replied no.
After several attempts to contact you I finally spoke with you, which I could only describe as a bizarre conversation. You failed to provide me with a legitimate explanation as to why you had not attended to your clients, a roster which in fact you had confirmed. The only reason you could provide that I could understand was that “you had made an executive decision”. Unfortunately Tom I am not in a position to provide you with any further work.
Your position with Who Cares? We Care! has ceased effective immediately.”
It is not in dispute that the dismissal took effect on 5 February 2022,[25] and I am satisfied that the dismissal occurred on this date by way of the above email.
Mr Walsh replied to Ms Faulds’ dismissal email on 5 February 2023 enquiring as to the grounds the respondent relied upon to terminate his employment.[26] Ms Faulds responded on 6 February 2023 as follows:
“Firstly you replied to your roster with both Ting and Donald which means you confirmed you were going to see these clients at the times stipulated on the roster.
You failed to attend to these clients plus failed to contact Who Cares? We Care! in any form to advise that you were not working.
It was only due to the fact that a Case Manager called and informed me that you had not
attended to these clients.
You then failed to provide me with a reasonable explanation as to why you didn’t attend,
instead stating you “had made an executive decision” and you blamed both Morgan (Office Manager) and Tracy (General Manager) for a reason for not attending and to be honest Tom from this point forward in the conversation I could not make sense of anything you were saying.
The conversation progressed to the point that any further discussion was pointless with you which left me in a position to believe that you would repeat this with no concern to the impact this has on both the business and to the clients.
Also despite many attempts requesting your current Police Check you have also failed to provide this. Please note we have given you reasonable time to present this certificate.
Once again, we wish you all the best for your future.”
Mr Walsh responded to Ms Fauld’s email on 8 February 2023. Mr Walsh changed the subject line of the email to “Unfair Dismissal claim pending.” The email states as follows:[27]
“If such a police check was so important you wouldn't let carers or employees work without one, and as such u did and i only got a couple of sporadic reminders to bring one in LOL
Serious companies would just pay for it themselves too not hassle employees to pay for a piece of paper along with other things.
And if u think i was on drugs or yelled at u, you are clearly having ur own hmm
problems and may need to drug test yourself!!
I was at my daughter's school about to pick them up so was talking low and could barely hear ur aggressive tones about missing a two hour shift that wasn't needed in such inclement weather!
But u acted like i have cost ur flailing company a 10 thousand dollar contract or something but your quite happy to just instantly stop my work and the services of a lot of clients and lose heaps of business because You were having a bad day.
Doesn't make any sense and not even a warning or proof i have breached a condition! So this must be malicious or personal as u made out i cost the company a lot but u will actually cost it more with these types of decisions.!
I expext any outstanding services be paid immediately along with a deserved severance payment for having no benefits along this journey of jumping in and doing you a favour Jacqueline.
Have barely heard or seen u/the director for the whole term of my employment and was actually quite shocked n taken aback by tje abusive phone call followed by a disgusting rude hang up!!
Yours Sincerely TW”
(without alteration)
Ms Faulds responded on 9 February 2023 attaching the four reminder emails issued to Mr Walsh in relation to the respondent’s request for a completed police check. Ms Faulds noted that she had identified how Mr Walsh had breached his contract and that there was no malicious or personal reason for the dismissal. Ms Faulds apologised not communicating enough but notes that the office staff were in constant communication. Ms Faulds also advised that wages would be paid upon receipt of a signed timesheet from the clients.[28]
In an exchange of emails on 10 February and 11 February 2023, Mr Walsh’s partner resigned from her employment with the respondent, which Ms Faulds has expressed her disappointment about.[29] By agreement with Ms Faulds, Mr Walsh’s partner remained employed by the respondent until 1 March 2023.[30]
Mr Walsh lodged the application for an unfair dismissal remedy, dated 17 March 2023, on 28 March 2023.
Statutory framework
The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[31] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.
Under s 394(3) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:
(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.
These matters are considered below.
Consideration
Reason for the delay: s 394(3)(a)
The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[32]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application, being the 30 days from 27 February to 28 March 2023 inclusive.[33] However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[34]
I understand that Mr Walsh relies upon two matters to explain the delay. First, Mr Walsh submits that his partner, who remained employed with the respondent until 1 March 2023, did not want Mr Walsh to pursue an unfair dismissal remedy in the Commission until she had left her employment with the company. At the hearing, Mr Walsh gave evidence that his partner “would not let” Mr Walsh make the application and actively tried to prevent him from applying to the Commission because she was involved in the industry and was concerned about different businesses conversing in relation to her partner’s application. Mr Walsh considered that his partner did not want to resign but only did so to allow him to pursue this application.
Second, Mr Walsh’s position is that he delayed lodging the application so that his partner was able to “leave” her employment with the respondent on her own terms in the week before his unfair dismissal application was filed, thereby avoiding the possibility of receiving a bad reference from the respondent.[35]
Mr Walsh attributes the entire period of the delay to these matters.[36]
The respondent submits that Mr Walsh’s partner performed her final shift for the respondent on 1 March 2023. Ms Faulds’ evidence is that she would have personally given Mr Walsh’s partner a “glowing reference,” and that a reference was provided by Ms Forbes on behalf of the respondent on 17 March 2023 in Ms Faulds’ absence, the same day on which Mr Walsh’s partner appears to have commenced a new role.[37]
For the reasons that follow, I am not satisfied that Mr Walsh has provided an acceptable reason for any part of the delay. Turning first to Mr Walsh’s second contention set out at [25] above, as is apparent from the analysis that follows, Mr Walsh’s position is not borne out by the evidence.
The evidence reveals that Mr Walsh’s partner resigned by way of an email to the respondent on 10 February 2023. She performed work until 1 March 2023. Mr Walsh’s submission that his partner got to “leave on her own terms last week,”[38] being the week prior to his application being lodged on 28 March 2023, is rejected. The employment of Mr Walsh’s partner concluded almost four weeks prior to the application for an unfair dismissal remedy being lodged in the Commission.
Mr Walsh submits that he did not want his unfair dismissal application to result in his partner receiving a “bad reference” from the respondent. I understand that Mr Walsh delayed lodging his application for this reason. For a contention of this nature to give rise to an acceptable reason for the delay, it would need to be supported by cogent evidence that there was a real risk of repercussion to Mr Walsh’s partner as a consequence of his action in making an unfair dismissal application. Mr Walsh has produced no such evidence.
Rather, the evidence before the Commission demonstrates that on 11 February 2023, following Mr Walsh’s partner resigning from her employment, Ms Faulds expressed in writing her deep appreciation for Mr Walsh’s partner and her work for the respondent. Ms Faulds expressed regret about the resignation but said that she “understood” and would dearly miss Mr Walsh’s partner.[39] Ms Faulds’ evidence, which I accept, is that she regarded the circumstances leading up to the making of Mr Walsh’s unfair dismissal application to be of no fault of Mr Walsh’s partner.[40] Relevantly this correspondence was sent by Ms Faulds within the 21-day statutory timeframe, being only six days after Mr Walsh was dismissed.
The respondent was on notice as early as 8 February 2023, prior to the date Mr Walsh’s partner resigned, that Mr Walsh intended to pursue an application for an unfair dismissal remedy. In an email to the respondent on 8 February 2023, Mr Walsh changed the subject line to “Unfair Dismissal claim pending.”[41] At the hearing Mr Walsh suggested that there was merely a “hint” or an “inkling” of a potential dispute because of the subject line. This is rejected.
I accept Ms Faulds' evidence that the 8 February 2023 email provided the respondent with a clear indication of Mr Walsh’s intention to dispute the dismissal by way of an application to the Commission. Noting this email was sent two days prior to the date Mr Walsh’s partner resigned, on Mr Walsh’s own account his email should have given rise to negative repercussions for Mr Walsh’s partner in her employment. However, there is no evidence of any negative treatment by the respondent towards Mr Walsh’s partner following this email, or at all. On the contrary, the evidence which demonstrates the positive relationship Ms Walsh’s partner held with the respondent post-dates Mr Walsh’s 8 February 2023 email. It therefore undermines any contention that this application would have negative repercussions for Mr Walsh’s partner at work.
I am not satisfied that there was any basis for Mr Walsh to anticipate that his actions would bear negatively upon his partner’s employment in the form of a “bad reference.” I therefore consider that Mr Walsh’s perception in this respect was unreasonable and entirely unfounded. It is also at odds with the material before the Commission which demonstrates that at all relevant times the respondent regarded Mr Walsh’s partner as a highly valued and respected employee who was being considered for the role of general manager.[42]
Mr Walsh’s contention that the delay was occasioned by his desire to avoid his partner receiving a “bad reference” from the respondent is therefore rejected. Accordingly, it does not constitute a reasonable explanation for the delay.
I turn now to consider Mr Walsh’s first contention which is set out at [24] above. There is no evidence before the Commission from Mr Walsh’s partner. Even if I accept Mr Walsh’s evidence that he refrained from making the application because his partner “would not let” him because she valued her employment with the respondent and because she was concerned about industry repercussions, this falls well short of providing an acceptable reason for the delay. As earlier stated, Mr Walsh expressed his clear intention to make an unfair dismissal application by way of his email to the respondent on 8 February 2023. Mr Walsh elected to delay lodging the application on the basis of his partner’s intervention. It follows that the delay is a consequence of Mr Walsh’s choice and is entirely attributable to Mr Walsh. I am not satisfied that the choice Mr Walsh made represents an acceptable reason for the delay. At its highest, Mr Walsh’s decision to delay making his application reflects his preference to avoid difficulties in his personal relationship. It does not demonstrate that Mr Walsh was seriously impeded in lodging his application on account of a relevant hardship which might be capable of explaining any part of the delay.[43]
Finally, the respondent provided a reference to Mr Walsh’s partner on 17 March 2023, being the date the respondent understands she commenced new employment. This is consistent with Mr Walsh’s submission that his partner gained a position at a new company in the week prior to Mr Walsh lodging his unfair dismissal application. Mr Walsh has advanced no explanation at all for the period of the delay between 17 March 2023 when the reference was provided by the respondent, and 28 March 2023 when he lodged his application in the Commission. By 17 March 2023, there was no longer any basis for Mr Walsh to hold concerns – reasonable or otherwise – about his partner receiving a “bad reference.” To the extent it might be suggested that Mr Walsh was using this time to prepare his application, that is rejected. Mr Walsh’s application is simple and would not have taken 11 days to organise. Further, the evidence has established that Mr Walsh had sought to pursue an unfair dismissal remedy since 8 February 2023 and was not prevented from preparing his materials in advance of lodging his application.
It follows that Mr Walsh has provided no explanation at all for the period of the delay between 17 March and 28 March 2023.
Having regard to the above matters and the conclusions reached, I am not satisfied that Mr Walsh has provided an acceptable reason for any part of the delay. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)
Mr Walsh was advised by email on 5 February 2023 that his employment had ceased. Mr Walsh responded to that email the same day requesting reasons for the dismissal.[44]
I am satisfied that Mr Walsh was aware the dismissal had taken effect on 5 February 2023. It follows that Mr Walsh had the benefit of the full period of 21 days to file an unfair dismissal application in the Commission. This weighs against a finding of exceptional circumstances.
Action taken by the person to dispute the dismissal: s 394(3)(c)
Where an applicant takes action to dispute a dismissal, it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[45]
As discussed above, Mr Walsh put the respondent on clear notice of his intention to make an unfair dismissal application by way of his email to Ms Faulds on 8 February 2023. The email raises concerns about the “inclement weather” which reflects Mr Walsh’s evidence in this application as to why he did not attend the clients as rostered on 3 February 2023.
I am satisfied that Mr Walsh took action to dispute the dismissal and that as a result the respondent was on notice of Mr Walsh’s intention. I consider that this weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer: s 394(3)(d)
Mr Walsh submits that the delay in lodging his application has not caused any unfairness to the respondent,[46] and the respondent has not made submissions addressing this factor. I do not consider that any prejudice to the respondent would arise if an extension of time were to be granted. However, the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.[47]
I consider this to be a neutral consideration.
Merits of the application: s 394(3)(e)
For the consideration in s 394(3)(e) to weigh in favour of a finding of exceptional circumstances, it must be shown that there is some merit in the substantive application.[48] However, this proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[49]
Mr Walsh contends that:[50]
(a) the dismissal was unfair because he did not know he had to ring the office before he decided the weather was not appropriate for gardening;
(b) he was not warned by the respondent at all and had never had any complaints about his performance or attendance;
(c) the first shift was for a half an hour dog walk that was not part of his regular duties;
(d) the second shift did not have much work involved and he attended the client weekly; and
(e) he said he made an “executive decision” to not attend the shifts and Ms Faulds responded angrily.
The respondent contends that:[51]
(a) Mr Walsh failed to attend shifts he had confirmed the day prior;
(b) Mr Walsh provided many different accounts of what had occurred on 3 February 2023, including by first advising that he had attended the shifts;
(c) Mr Walsh had not contacted the office to advise that he had made an “executive decision” not to attend the shifts;
(d) the respondent’s business emphasises honesty as it services vulnerable persons; and
(e) Mr Walsh had failed to provide a police check after numerous follow-ups.
On the evidence before me, I am unable to form a view as to the merits of the application. In the determination of Mr Walsh’s application, it would be necessary that he and Ms Faulds be cross examined on the particulars of their conversation on 3 February 2023. Further, while Mr Walsh submits that he had never had any issues with his performance, it appears a customer made reference to two complaints in November 2021 which would need to be the subject of evidence. I also observe that the application would involve consideration as to the weather on 3 February 2023, which Mr Walsh contends was “inclement,” and whether a gardener for the respondent has the right to unilaterally cancel a shift if the weather is unfavourable. It would also be necessary to consider the circumstances behind Mr Walsh’s failure to provide a police check at the times requested by the respondent, given his work in the provision of services for elderly or vulnerable clients or those that otherwise require in-home care.
Noting that the Commission should not embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time, I consider this factor to be neutral in my assessment.
Fairness as between Mr Walsh and other persons in a similar position: s 394(3)(f)
With respect to the factor at s 394(3)(f) Mr Walsh submits, “I think i am worse off as i had to wait and not know what i could do and when.”[52] I do not consider this matter to be relevant to the question of fairness as it relates to Mr Walsh. Nor are there any other relevant considerations that are appropriate to be taken into account in the assessment of this matter.
In the circumstances, I consider this to be a neutral consideration.
Are there exceptional circumstances?
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria, in the context of a significant delay of 30 days, I am not satisfied that there are exceptional circumstances that support an extension of time.
Disposition
As I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together, there is no basis for me to extend time.
Mr Walsh’s application for an unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr T Walsh, the applicant
Ms J Faulds on behalf of the respondent
Hearing details:
21 April 2023, by Microsoft Teams
[1] Court Book (CB) 57
[2] CB 9 at [1.1]
[3] CB 41 at [1.2]; 57
[4] CB 42 at [1.5]
[5] CB 57
[6] CB 59
[7] CB 44 at [2.2]; 58-59; 61-63
[8] CB 58
[9] CB 57; 65-68
[10] CB 50
[11] CB 54
[12] CB 53
[13] CB 52
[14] CB 12 at [3.2]; 26 at [7]; 47 at [3.2]
[15] CB 57
[16] Ibid; 47 at [3.2(5)]
[17] CB 46 at [3.1]
[18] Ibid
[19] Ibid
[20] Ibid; CB 57
[21] CB 46 at [3.1]; 57
[22] CB 58
[23] CB 12 at [3.2]
[24] CB 18
[25] CB 9 at [1.5]; 41 at [1.3]-[1.4]; 18
[26] CB 18
[27] CB 16
[28] CB 15
[29] CB 62-63
[30] CB 58
[31] [2011] 203 IR 1
[32] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[33] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]
[34] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]
[35] CB 10 at [1.6]; 25 at [4]
[36] Ibid
[37] CB 58
[38] CB 10 at [1.6]; 25 at [4]
[39] CB 63
[40] CB 59
[41] CB 16
[42] CB 58
[43] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472 at [22]
[44] CB 17-18
[45] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
[46] CB 25 at [6]
[47] C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38]
[48] Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 at [71]
[49] Kyvelos v Champion Socks Pty Ltd[2000] AIRC 540, Print T2421 at [14]
[50] CB 12 at [3.2]; 26 at [7]
[51] CB 46 at [3.1]
[52] CB 26 at [8]
Printed by authority of the Commonwealth Government Printer
<PR761500>
0
8
0