Mrs Melanie Monroe v Magic Millions P/L T/A Magic Millions Gold Coast

[2014] FWC 6054

[2014] FWC 6054

FAIR WORK COMMISSION

DECISION

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

Mrs Melanie Monroe
v
Magic Millions P/L T/A Magic Millions Gold Coast
(U2014/7250)

DEPUTY PRESIDENT ASBURY BRISBANE, 3 SEPTEMBER 2014

Application for unfair dismissal remedy - Jurisdiction - Extension of time.

[1] Ms Melanie Monroe applies for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to the termination of her employment by Magic Millions Pty Ltd t/a Magic Millions Gold Coast (Magic Millions). Ms Monroe states in her Form F2 Application for an unfair dismissal remedy that she was notified of her dismissal on 10 January 2014 and that it took effect on that date. The application was made on 15 May 2014.

[2] By virtue of s.394(2) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). Ms Monroe’s application was made 104 days outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s.394(3) for the application to be made. That sub-section provides as follows:

(3) 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) 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

[3] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[4] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2 Each of the matters in s.394(3) is considered below.

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Ms Monroe to make her application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine with respect to any statements provided by the other party. Both parties have filed and served material including submissions and witness statements. Neither party has indicated that it wishes to cross-examine any person who has made a statement. Accordingly, I have determined this matter on the basis of the material on the file.

[6] Ms Monroe’s material consists of an email in which she states that upon being dismissed and asked to leave the Respondent’s premises, she decided to email “higher management” to discuss the events which had occurred and the manner in which she was advised that her services were no longer required. A series of email correspondence was appended to Ms Monroe’s Form F2 Application for an unfair dismissal remedy. That correspondence indicates that Ms Monroe sent a number of emails to Magic Millions in relation to her dismissal.

[7] This correspondence commenced with an email sent by Ms Monroe to Mr Vincent Cox, the Managing Director of Magic Millions Sales Pty Ltd, on 15 January 2014 complaining about her dismissal. Mr Cox responded on 16 January 2014 stating that he would look into the matter and get back to Ms Monroe.

[8] Ms Monroe said that she did not receive a response to her email but waited a “respectful period” to allow an investigation to be conducted before corresponding with Mr Cox on 11 March 2014 again complaining about her dismissal. On 31 March, Ms Monroe sent a further email to Mr Cox complaining that she had not been provided with a valid reason for dismissal and stating that if the matter was not addressed, she would source Government departments and counsel to intervene on her behalf.

[9] Mr Cox responded to Ms Monroe on 4 April 2014 indicating in response to her suggestion that she was seeking legal advice, that future correspondence should be directed to a Solicitor engaged by the Respondent. Mr Cox’s email also states that it is assumed that Ms Monroe will not be taking up an offer to work during a forthcoming event. Ms Monroe again emailed Mr Cox on 9 April 2014 raising alleged unsafe and illegal staff practice. On 28 April 2014 Solicitors for the Respondent wrote to Ms Monroe informing her that as a casual employee the Respondent was not required to offer her further employment and denying her allegations.

[10] On 6 May 2014 Ms Monroe wrote to the Respondent’s Solicitors stating that she was fully aware of her rights as a casual employee and would be referring certain matters to the Queensland Police Service. The Respondent’s Solicitors again emailed Ms Monroe and said that it would co-operate with any Police investigation and viewed her threat as being tantamount to blackmail.

[11] Mr Cox provided a statement in which he referred to the email correspondence. Mr Cox said that when he received Ms Monroe’s first email he was absent on annual leave, and met with Ms Monroe on 6 March 2014. At that meeting, Mr Cox informed Ms Monroe that he could not offer her a position at the March Sale but sought her agreement to work at a sale in May/June. Mr Cox also said that he sent an email to Ms Monroe on 14 March 2014 confirming that there was no position for her at the March sale but seeking her agreement to work at the National Sale in May/June. This email was not tendered by either Mr Cox or Ms Monroe.

[12] In its submissions the Respondent contends that even if time is extended, Ms Monroe has not served the minimum employment period prescribed in s.383 of the Act, and has worked for a total period of 13.5 days over 7 casual employment periods, from 17 June 2012 to 26 June 2014, without being employed on a regular and systematic basis. Ms Monroe disputes this assertion but does not provide details of her working hours.

[13] The Respondent further contends that Ms Monroe’s emails indicate that she was aware of her legal rights and intended to pursue them, and that the chain of correspondence does not provide an excuse or an exceptional circumstance in relation to her failure to make her application within the required time.

[14] On the basis of the material before me, I am unable to be satisfied that there are exceptional circumstances such that the discretion to allow a further period in which to make an unfair dismissal application should be exercised in favour of Ms Monroe. Ms Monroe elected to pursue what she alleges to have been an unfair dismissal, by corresponding directly with her former employer. That Ms Monroe chose to wait for a response to her correspondence, or that she did not receive immediate responses from Mr Cox, is not an exceptional circumstance. Even if some of the delay can be attributed to Mr Cox’s responses, from at least 31 March, Ms Monroe stated that she would source Government Departments and counsel to intervene on her behalf. There is no reasonable explanation for Ms Monroe’s failure to do so and to make an application with respect to her dismissal. There is a further lapse of some nine days between Ms Monroe stating on 9 May 2014 that she was aware of her rights and making her application on 15 May 2014.

[15] An employee who embarks on a deliberate course of action to dispute a dismissal directly with his or her former employer, on the basis that the employee intends to make an application if the direct resolution attempts are not successful, is still required to comply with the legislative time frame in which that application must be made. A failure to comply with the time frame in such a case is not of itself an exceptional circumstance.

[16] However, a slip of a few days in circumstances where negotiations are ongoing and the employer and the former employee are engaged in discussions might be overlooked in the face of an obviously meritorious claim, and there may be basis for extending time. Similarly, exceptional circumstances may be found to exist where an employer misleads a former employee in relation to settlement negotiations, so that the application is made outside of the required time frame. This is not such a case. Ms Monroe took matters into her own hands and when her attempts to resolve the matter directly with her former employer did not succeed, failed to act in a timely manner and make her application.

[17] Ms Monroe was aware of her dismissal and the date upon which it took effect. While Ms Monroe disputed her dismissal, she took an inordinate amount of time to make her application, in the face of clear indications from her former employer that it did not accept her assertions about the way in which she had been dealt with.

[18] In relation to the merits of the application, there is a further impediment to the application proceeding on the basis that the Respondent asserts that Ms Monroe had not been employed on a regular and systematic basis for the required period. There is no indication, on the basis of the material filed by Ms Monroe and the facts asserted in her Form F2 Application, that the merits outweigh a significant delay in making the application without adequate reasons being provided.

[19] The Respondent has not pointed to any prejudice as a result of the delay. In relation to the issue of fairness between Ms Monroe and other persons in a like position, to allow a further period in circumstances where there is no adequate explanation for the delay and no exceptional circumstances, would be unfair to the many applicants who have been refused extensions.

[20] For these reasons, I am not satisfied that there are exceptional circumstances or that the discretion to allow a further period for Ms Monroe’s application to be made should be exercised. Ms Monroe’s application for an unfair dismissal remedy U2014/7250 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

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