Mrs Monica Armstrong v Berkana Investments Pty Ltd
[2010] FWA 4668
•22 OCTOBER 2010
[2010] FWA 4668 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Monica Armstrong
v
Berkana Investments Pty Ltd
(U2010/225)
COMMISSIONER SPENCER | BRISBANE, 22 OCTOBER 2010 |
Termination of employment - jurisdiction - extension of time; whether termination at the initiative of the employer.
Background
[1] The Applicant, Ms Monica Armstrong, made an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) claiming she was unfairly dismissed from her employment with Berkana Investments Pty Ltd trading as NewsXpress Toowong Village (the Respondent/Employer). Mr Paul Martin conducted the Respondent’s business. The application for relief must be made within 14 days after the dismissal took effect (s.394(2) of the Act). This determination relates to the jurisdictional issues as to whether an extension of time should be granted to allow the application and whether there was a termination at the initiative of the Employer as required by s.386 of the Act.
[2] The Applicant indicated in her application that the first date she became aware of the dismissal, or that her resignation severed her full-time and part-time employment was 8 February 2010. The Application was lodged on 15 February 2010. The Applicant submitted that in providing a resignation letter at the request of the Employer, she considered she had resigned from full-time employment to take up part-time employment with the Respondent. Whereas the Respondent submitted she had resigned from her full-time employment, with a remaining opportunity for casual employment where available.
[3] Fair Work Australia (FWA) is required to consider whether an application is made within time, and in this matter whether the termination was at the initiative of the employer, before considering the merits of the application. Section 394(3) authorises FWA to extend the time for making the application if it is satisfied that there are exceptional circumstances, taking into account specific matters.
[4] A conciliation conference was listed before a FWA Conciliator; however, the jurisdictional objections were raised. Directions were issued in order to have these jurisdictional matters dealt with. The parties were also requested to respond as to whether they required a hearing; both parties confirmed that they did not require a hearing. However, given the disparity in the evidence the matter was heard on Thursday 14 October 2010.
[5] Whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.
Legislation
[6] The relevant sections of the Act are as follows:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
…
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.
396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
…
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Summary of Submissions of the Applicant
[7] The Applicant submitted that her application was not out of time and that she had not resigned from her employment in total. She stated that the reasons for the delay in her application were as follows:
“On my commencement of employment as a full-time wages employee with Berkana Investments Pty Ltd in August 2006, I was not presented with a Letter of Offer. I commenced working for my employer on a verbal agreement.
In or about February 2008, my employer suggested I become a salary staff member. I took up this verbal offer. Once again, I was not presented with a Letter of Offer.
It was in or about late August 2009 when I approached my employer to discuss the possibility of commencing permanent part-time employment on my return from my overseas holiday in February 2010 to be available for my grand-daughters before and after school. My employer queried as to whether I wanted the same work arrangement as another staff member who worked 25 hours a week. I said I was happy with that and took that as being a verbal agreement on his part of my new work pattern. My employer at no stage gave any indication that my proposal would not be taken up.
As I have never been given a Letter of Offer from the commencement of my employment and any changes to my employment throughout the 31/2 years, I did not expect to receive a Letter of Offer confirming my new work arrangements. I accepted my employer’s verbal offer. 1
By 23 December 2009 I had made an agreement with my employer regarding my part-time employment to commence on week beginning 1 February 2010 which was on my return from a 5 week overseas holiday. I have worked for my employer for 3½ years and this was the first holiday I have taken for a period of over 2 years.
On my departure from work on 23 December 2009, my employer handed me a letter prepared by him which he asked me to sign. On questioning him about this letter, he informed me that it was necessary so he could re-employ me in the new capacity as a permanent part-time employee on my return from holidays on 1 February 2010. This was 5 minutes before I was due to leave for my overseas holiday.
This was the first time any communication between my employer and myself had taken place with regards to a resignation. I have never mentioned resignation to my employer in the 3½ years of working in his employ. In fact, as I am 54 years old and self-supporting, my intentions were to continue working for this business as long as possible as I realised it may be difficult for me to find gainful employment elsewhere.” 2
[8] She further stated with regard to whether a dismissal had occurred:
“On 23 December 2009, upon presentation of the ‘resignation’ letter prepared by my employer at his initiation, I questioned my employer’s motives. He explained to me that for accounting purposes and for ‘tying up loose ends’, it was necessary to finish my employment as a ‘full-time’ employee in order to commence my new work pattern as a permanent part-time employee on my return from holidays in February 2010.
I never initiated resigning from my employment with Berkana Investments Pty Ltd. I am a 54 year old self-supporting woman and realise that opportunities for full-time or permanent part-time work for someone with my experience and age are hard to come by. I accepted his verbal offer to commence permanent part-time employment in February 2010. At no time did my employer explain to me that my new work pattern was not accepted by him.
My employer never requested me to formalise my intention to cease full-time employment because I never discussed resignation with him.
I took my employer at his word that the ‘resignation’ letter, initiated and prepared by him, was to simply cease my employment as a ‘full-time’ employee in order to take up my new work pattern in February 2010. Despite signing the ‘resignation’ letter, I believed I was still an employee of Berkana Investments Pty Ltd. It was not until 8 February 2010 when my employer stated, ‘can you look for another job’ that I considered myself to be ‘sacked’.
My employer was fully aware of my return date from holidays as I had noted it in the correspondence diary (copy of extract provided). Also, it had been discussed numerous times in conversations regarding my holiday schedule. At no time was it mentioned that my weekend shift roster was short term or on a casual basis. This is confirmed by the witness statements. 3
...
I was not aware I was dismissed until the 8th February 2010.
I rang my employer on 4 February 2010 regarding the next week’s shifts as it was noted in the newsagency correspondence diary that I would be available for roster the week commencing 8 February 2010. I had spoken to my employer with regard to changing my working pattern before I had gone on holidays. In previous discussions with my employer I offered my services from 9am to 2pm, Monday to Friday, which is the busiest time of trade. The other work options were to work Thursday late night shopping or weekends. He had always allowed me to believe that this was not going to be a problem and that he approved of the changed work pattern.
My employer rostered me to work Saturday and Sunday, 6 and 7 February 2010, as senior supervisor for the weekends. I rang my employer on Monday, 8 February 2010, to enquire if the weekend roster was performed to his satisfaction as I had not done a weekend work for some considerable time as my role as a full time employee was to open and supervise the business from 6am to approximately 4pm Mondays to Fridays (45hrs per week).
I was advised that my supervision of the business was satisfactory but I had forgotten to ‘put away’ some daily papers for a real estate agency. At this time my employer said to me he had a problem and stated ‘can you look for another job’. My response was, ‘you have to be kidding, with all the ups and downs, we’ve had and I’ve stuck by you through them all’. My employer then disconnected the call.
At this point, I was in total disbelief just coming to the conclusion that I had been ‘sacked’. 4
The prejudice has actually been directed towards me with the assumption that I had known I was dismissed on 23 December 2009. I believe this assumption was due to my being coerced into signing the resignation handed to me. Had I known on 23 December 2009 that I had been dismissed, I would have lodged my complaint that day. However, since I worked on 6 and 7 February 2010 on returning from my leave, I believe that I was not dismissed until Monday 8 February 2010.
I had worked for my employer for 3½ years and in that time my work had always been classed as “excellent”. I did not at any time think that the letter handed to me as I was leaving to go on holidays was a “resignation”. I believed the story my employer told me because I had no reason to disbelieve it. I was dismissed from my employment on 8 February 2010 and lodged my application within the required time following that dismissal.” 5
[9] The Applicant stated that she viewed the dismissal as being effected on 8 February 2010, after working for the Respondent on 6 and 7 February 2010, however she also stated she had been on the roster to work the following week. Accordingly, she argued that given that her application was lodged on 15 February 2010, it was within the 14 day time limit after the dismissal took effect.
[10] The Applicant stated that the Respondent had amended the rosters and given her the weekend rosters she requested after her return from leave and it was only after working these shifts that he terminated her employment.
[11] Ms Kate Cuddihy, the Senior Supervisor, provided a signed statement setting out:
“At no stage between the periods of when I was aware Monica Armstrong was going overseas to the time she left that she had intended on resigning her full-time position at NewsXpress Toowong Village. I believed and subsequently wrote on the stores availability roster for the coming week beginning 8 February 2010, that Monica Armstrong was returning back to work in her new part-time position of 9:00am – 2:00pm, Monday to Friday (which had been illustrated in the stores correspondence diary).” 6
[12] Ms Johannah Cuddihy (Ms Kate Cuddihy’s younger sister) and Mr Matthew Phillips also provided evidence at the hearing. None of these employees had been present for the critical discussions between the Applicant or the owner of the business, Mr Martin regarding the resignation or future hours. Ms Johannah Cuddihy was hostile towards the employer as she considered the Respondent had treated the Applicant very poorly.
Summary of Submissions of the Respondent
[13] The Respondent submitted that:
“At no time was there an agreement, either written or verbally, reached between myself and Ms Armstrong for her to commence permanent part-time employment, had permanent part-time employment been on offer to Ms Armstrong she would have been provided with a Letter of Offer, stating the terms of the offer.” 7
[14] Further, in relation to the alleged resignation, the Respondent stated:
“On Ms Armstrong’s departure on 23 December, 2009 I believed she was aware she was signing a resignation letter. Ms Armstrong has acknowledged such in her submissions.
The cessation of Ms Armstrong’s full-time employment was at her initiation. It was always clearly explained to her that permanent part-time employment was not being offered.
Upon my several requests for Ms Armstrong to formalise her intention to cease full-time employment, Ms Armstrong indicated no issue with this procedure.
Ms Armstrong was at no time dismissed, therefore, her ‘becoming’ aware she had been dismissed on 8 February, 2010 was an assumption on her part.
Upon Ms Armstrong’s return from overseas in 2010, she requested shifts, I made it very clear to Ms Armstrong that, on short notice, having not been aware of her return, I could only make weekend shifts available to her, and knowing that meant other valued staff members would not get any shifts for the week, I told Ms Armstrong this arrangement was very short term.
Upon Ms Armstrong’s request for feedback about her work performance on the weekend shift I did respond that it had been satisfactory.
Ms Armstrong’s assumption she had been ‘sacked’ has initiated an unnecessary and time-consuming chain of events.
Ms Armstrong’s actions of having existing and valued staff members provide witness statements has caused prejudice and a breakdown of employer/employee relationships with these staff members.” 8
[15] I have not placed particular weight on the evidence of Ms Sonia Millar (Payroll Officer); as although she answered the questions in an open manner, when asked Mr Martin declared that there was a relationship between them.
Considerations
[16] The following provides an assessment of the matters in s.394(3) which are required to be taken into account to be satisfied that there are exceptional circumstances, to allow a further period of time for the application to be made by the Applicant.
s.394(3)(a) the reason for the delay
[17] The Applicant submitted that her application was not filed out of time, as the termination of her employment only took effect on 8 February 2010, and as such her application of 15 February 2010 was within the 14 day time limit required by the Act. In the alternative, the Applicant submitted that the delay was caused by the deceptive conduct of the Respondent which led the Applicant to believe that her employment contract was still on foot on a part-time basis and continuing work was anticipated. However, the Respondent took the resignation effective from 23 December 2009, and therefore submitted the application was out of time.
[18] The Applicant clearly construed that she had simply amended her employment contract from full-time work to part-time work and that the provision of the weekend shifts on her return supported her belief in continuing employment.
[19] The Applicant’s confusion regarding the date of the dismissal was contributed to by the provision of further shifts and the further expectation of work due to the forward roster, hence the delay in the dismissal application.
[20] The evidence of the Respondent was that he had responded to the request from the Applicant to resign from her full-time employment to allow her to care for her grandchildren. He says as a result of this request he sought a letter of resignation from the Applicant on a number of occasions to effect the finalisation of the full-time contract. He stated that he needed this to move ahead to fill the hours of the Applicant.
[21] Accordingly, the Respondent had the Payroll Officer (Ms Millar) prepare a letter of resignation which the Applicant signed on her last day before leave. The Applicant did query why the letter had to be signed at that time. The Respondent stated it was required to ‘tie up loose ends’. The Applicant had previously requested that her accrued annual leave be paid to her prior to her leave commencing. All of her accrued annual leave was paid out which was in excess of the period of the holiday taken. This action was consistent with the Respondent’s evidence that the Applicant was aware that her full-time contract was being concluded by her resignation and that she was aware that some casual hours may be able to be provided, but there was no guarantee of such.
[22] The Applicant submitted that she never would have resigned her full-time contract if she considered she was not going to move to a part-time contract.
[23] The Respondent’s evidence was that he and the Applicant had had a number of discussions regarding the rostered hours she required to be compatible with the care of her grandchildren. He stated that he had advised that he could not provide the part-time hours proposed by the Applicant, which were the hours from 9.00 am to 2.00 pm Monday to Friday.
[24] Mr Martin stated that it was confirmed with the Applicant in several discussions prior to her last day, that he could not accommodate the hours she wanted as he required employees to be rostered on a shift to open the business and another employee rostered to close the newsagency, and therefore he could not provide the part-time hours she sought. The shifts he provided on her return were for the weekend. He stated that the provision of these hours on a casual basis on the weekend meant other valued casual staff (who were only available to work on the weekends) did not receive any hours for the week.
[25] On the point regarding when the dismissal was effected, the evidence and submissions of the Respondent are preferred. On the Respondent’s evidence, the Applicant’s resignation took effect prior to her holidays; no further part-time work was offered, and he only offered her further casual shifts upon her return.
s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect
[26] The Applicant submitted that she first became aware of the termination of her employment on 8 February 2010. The Respondent submitted that it had been clear to the Applicant prior to her annual leave when she signed the resignation letter.
s.394(3)(c) any action taken by the person to dispute the dismissal
[27] The Respondent submitted that the Applicant resigned from her employment prior to taking annual leave, on 23 December 2009.
[28] The Applicant stated that a dismissal was effected by the Respondent on 8 February 2010 after she worked the shifts on return from her leave. On not receiving the required shifts of 9.00 am to 2.00 pm Monday to Friday upon her return, the Applicant did not take any action until seven days later with the lodgement of the application to FWA on 15 February 2010.
s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)
[29] The Respondent submitted that the application had been disruptive to the business and that the Applicant’s resignation should be relied upon. He stated that the time limits set under the Act should be recognised, in order for it to continue its operations without reprisal from terminated workers who fail to comply with the Act. Whilst the legislation is aimed at providing certainty, it would be inappropriate to allow an employer to delay the finalisation of an employee’s dismissal and then to rely on the strict time limits of the Act, where there was uncertainty regarding when the termination took effect.
[30] The Applicant had an entitlement to make the application. It is clearly a credit to the manner in which she interacted with the younger staff who were prepared in the circumstances to give evidence in support of her. The Respondent should ensure that none of these employees (those who desired to remain employed) are impugned in their employment for providing evidence in this matter. The animosity borne towards the Respondent by the witnesses appeared to be a product of his staff relations rather than prejudice visited upon him; as a direct result of these proceedings.
s.394(3)(f) fairness as between the person and other persons in a similar position
[31] This matter of fairness between like persons has limited application on the current facts.
Exceptional Circumstances
[32] In relation to the consideration of ‘exceptional circumstances’ I adopt the approach taken by Whelan C in Parker v Department of Human Services 9(as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)10 as addressed below:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression 'exceptional circumstances' as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
[Mann v Minister for Immigration and Citizenship [2009] FACFC 150]
[33] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend a period of time for a person to make an unfair dismissal application.
[34] The disparity between the parties’ evidence was fundamentally that the Applicant conceded she had signed a letter of resignation; but had done so on the basis that she was proceeding to a part-time contract. However, at the time of leaving for her holiday there was no confirmation of part-time hours. The Respondent stated that the Applicant’s resignation was in full and that he had indicated he could not accommodate the hours that she had sought in the middle of the day.
[35] Mr Martin summarised the events of the dismissal as follows:
“THE COMMISSIONER: Well, you don't take issue with the fact that she was a full time employee?---Of course she was, yes. And at that point in time if she'd have still said to me, "Look, I can open for you but can I close - finish earlier? I only want to do until midday." That's the same sort of thing as what May is doing and that would have been acceptable because I could have split May to the afternoon, or vice versa, I could have her close. That was what I was getting at. They were the conversations that I had at the time. But I said, "I cannot give you guaranteed hours between 9 and 2." I don't know how many times I said that. Ms Armstrong was requested for a letter of resignation, to which she agreed, but failed to provide. And she was questioned whereas - on three occasions at least. You know, I haven't documented the dates and times that this occurred because it was at that point in time, a conversation that I was having with a trusted employee, that expected to have an ongoing employment relationship with. In Mr Phillips's evidence, he's now stating that the employees that were requested to give up their shifts - - -
MR MARTIN: Now, those people were the people that took issue with the fact that they were doing the work during the week and doing - fulfilling those gaps that Ms Armstrong left. No, I didn't replace her with a full time employee, but I replaced her with hours from some existing and some new casual employees that were at uni. But - some wanted only 10 or 15 hours, some wanted 30 or 40 hours and that was offered to Mr Phillips. Now, those people took issue with it. Those people contacted me and said, "Look, you know, I need those hours." I then rang Ms Armstrong, as she said, and when she rang up she said, "Look, can I have hours on the weekend?" I said, "Fine, I don't have an issue with it. But I do have an issue," and I said, "you're really going to have to find some alternative work." At that point in time Ms Armstrong hung up and came in and presented me with the request - - -
...
MR MARTIN: So came in - hung up, the next thing I know, an hour later she was in and giving a letter of separation to which I filled out accurately as being separated on 23 December. Now, I was - I had - I would have had continued that conversation with Ms Armstrong to say, you know, "I'll continue to find you some hours but it's difficult for me to give you enough hours to achieve what you're asking for." That's always been the issue that I said, "As soon you resign from full time employment you took away that gap in my rostering that made it very difficult for me." But as I was - as I had done with Scott, the previous manager, I found him alternative work.
THE COMMISSIONER: All right?---And I was offering to do that but she didn't take that up. She resigned.” 11
and further:
“MR MARTIN: So we know that there's a resignation and it's just a case of whether there was a forced resignation or not which would have occurred on 23 December. So, in which case that that would be the opportunity to be well out of time. Ms Armstrong would have been aware at that point in time there was a forced resignation and she should have taken the issue with it at that point in time.” 12
[36] It is more than unfortunate that the Respondent left such a critical step as the resignation to be effected just prior to the Applicant leaving to go on a vacation. However, the Respondent stated that the situation was clear between the parties. The Applicant was operating on her belief that she was to take up part-time hours, despite no such roster having been agreed to. At most, her return date was noted in an operational diary that was completed by staff at the front counter and not utilised by the Respondent. The documents she referred to in evidence regarding the notification of holidays by staff, on the evidence, doesn’t provide any conclusive record of an ongoing employment relationship.
[37] The Applicant was of the mistaken belief that given her years of loyal service; the Respondent would effect a part-time contract with the rostered hours she requested. The Respondent’s evidence was that these continuing part-time hours were not agreed, prior to her taking leave and he had stated that only casual hours were being held out. Further, he stated that the Applicant had resigned on 23 December 2009, and all of her annual leave entitlements had been paid out accordingly. On the basis of the submissions and the evidence before me, a resignation was completed, and there was no termination at the initiative of the employer and therefore, the application is jurisdictionally barred. Further, the matter was out of time and the exceptional circumstances do not exist to grant the extension of time. Accordingly, the application is dismissed pursuant to s.386 and s.394(2) of the Act. I Order accordingly.
COMMISSIONER
Appearances:
Ms Monica Armstrong, for herself, assisted by a support person
Mr Paul Martin, for Berkana Investments Pty Ltd
Hearing details:
Brisbane
2010
October
14
1 Submissions in reply to Respondent’s submissions on the extension of time.
2 Submissions of the Applicant.
3 Submissions in reply to Respondent’s submissions on the extension of time.
4 Submissions of the Applicant.
5 Submissions of the Applicant.
6 Statement of Ms Kate Soo Jin Cuddihy, 20 April 2010.
7 Response to Applicant’s submissions.
8 Response to Applicant’s submissions.
9 [2009] FWA 1638.
10 [2010] FWA 1394.
11 PN836-842, Transcript of Proceedings.
12 PN867, Transcript of Proceedings.
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