Mrs Sharyn Joy Moll v Riverland Funerals Pty Ltd
[2024] FWC 3332
•2 DECEMBER 2024
| [2024] FWC 3332 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Sharyn Joy Moll
v
Riverland Funerals Pty Ltd
(U2024/11901)
| COMMISSIONER THORNTON | ADELAIDE, 2 DECEMBER 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – extension of time – no exceptional circumstances – claim dismissed
Ms Moll (Ms Moll or the Applicant) was dismissed from her employment as General Manager of Riverland Funerals Pty Ltd (Riverland Funerals or the Respondent).
The Respondent met with the Applicant on 12 September 2024 and informed her that her employment was terminated immediately. The Applicant was sent a letter of termination by email later the same day.
Ms Moll asserts that her termination took effect on 13 September 2024, being the date on which she was directed to collect her personal belongings from the workplace and return property of the employer.
The Applicant filed her claim for unfair dismissal on 4 October 2024, one day after the 21-day statutory time limit if her employment was terminated on 12 September 2024. If I find that the dismissal took effect on 12 September 2024, Ms Moll seeks an extension of time to file her application. Alternatively, if I find that the termination took effect on 13 September 2024, the application was made within the statutory time limit.
A hearing was conducted on 13 November 2024. Ms Moll gave evidence on her own behalf. Directors of Riverland Funerals, Mr and Mrs Mullan, gave evidence on behalf of the Respondent in addition to Mr Tankard, a Human Resource Advisor who provided advice to the Respondent and assisted it with the disciplinary process leading to the termination of Ms Moll.
This decision addresses the date of termination and whether exceptional circumstances exist in this matter such that I should exercise my discretion to extend the time for Ms Moll to file her application.
For the reasons set out below, I find that Ms Moll’s employment was terminated on 12 September 2024 and consequently her application was filed one day outside of the statutory time limit. I further find that no exceptional circumstances exist in this matter, and as a result, no extension of time can be ordered.
Background
Riverland Funerals is a family business operating in Berri in the Riverland region of regional South Australia. Ms Moll was employed as the General Manager of the business. The business was previously managed and controlled by her older brother, and after his retirement, more recently by her brother-in-law Mr Mullan and her sister Mrs Mullan. Ms Moll’s son and nephew are also employees of the business.
Mr Tankard gave evidence that his employer, Key Business Advisors (KBA) had been engaged by the Respondent after Mr and Mrs Mullan took over the business to provide human resources assistance and expertise with a focus on addressing a culture of bullying and inappropriate behaviour they say existed in the workplace.
Issues regarding Ms Moll’s conduct in the workplace and management of the business were first raised with her after Mr and Mrs Mullan took a leading role in operating Riverland Funerals. In their Employer Response Form F3, the Respondent set out that the Applicant’s performance as General Manager had been raised with her as early as 3 May 2024 by KBA when they addressed what the Respondent described as: “the culture of bullying within the management team, with staff expressing significant concerns about the applicant’s behaviour towards them.”[1]
The Respondent also claims that its concerns were again raised with the Applicant on 5 June 2024 following further feedback from other employees that “a pattern of bullying behaviour persisted.”[2] In addition, the Respondent raised its concerns about excessive overtime payments being made to the management employees overseen by Ms Moll.
On 2 July 2024 employees in a management role at the Respondent were issued with a warning. The warning was given to three managers of the business including Ms Moll in the same or similar terms. The warning noted: “we are appalled at the undermining and bullying behaviour as well as the financial negligence … that have occurred by our family members since we bought the business. … From this point onwards, we will have a zero tolerance for any undermining, bullying behaviour or under performance by our family members that places Riverland Funeral’s brand, reputation and business at risk.”
On 20 August 2024 the Applicant was suspended from employment after complaints were again made about her conduct. The Respondent discussed with Ms Moll whether she would consider leaving the business with a planned transition to retirement. This proposal was rejected by Ms Moll. It appears from the evidence that there was no disciplinary outcome from the 20 August 2024 suspension and Ms Moll returned to work.
Mr Tankard gave evidence that a further two complaints were made about Ms Moll by other employees after 20 August 2024 and the Respondent determined to again suspend her from work beginning on 3 September 2024. Mr and Mrs Mullan gave evidence that complaints about the Applicant were predominantly made to Mr Tankard in undertaking a human resource function for the business.[3]
The Respondent called the Applicant to a meeting on 9 September 2024, where it set out allegations of misconduct against her. The five allegations were read out at the meeting and the Applicant was asked to respond to each of them at the meeting. The allegations were sent to her in writing on 10 September 2024 and she was then directed to attend a “show cause” meeting to “present your case as to why your employment should not be terminated”[4]. The date of the show cause meeting was not set out in the letter.
The correspondence of 10 September 2024 did not make clear which of the allegations had been substantiated and on what basis but did note: “Riverland Funerals believes, on the balance of probabilities, that your behaviour contravenes your previous warning and the company’s policies and procedures”. The letter also sets out: “Given the findings and seriousness of the allegations, Riverland Funerals is considering disciplinary action, including the termination of your employment”[5].
Ms Moll was not offered an opportunity to respond to the allegations, either in writing or verbally, after having an opportunity to consider and reflect on the conduct alleged. She gave evidence that it was only after she did an internet search about the meaning of a ‘show cause’ process that she understood what was involved. Ms Moll then went about preparing a detailed written response to the general allegations that were included in the letter of 10 September 2024.
Given that no date was included for the show cause meeting in the letter of 10 September 2024, Ms Moll’s evidence was that she assumed the meeting was the next day and she worked through the night to prepare a written response. When she emailed the response to Mr Tankard, she says that she asked him to pass it on to Mr and Mrs Mullan. She logged on to the Teams meeting the following day and when Mr Tankard did not attend, she contacted him and was advised the meeting was scheduled for 12 September 2024.
The meeting proceeded on 12 September 2024 with Ms Moll, Mr and Mrs Mullan and Mr Tankard present. At this meeting Ms Moll was dismissed from her employment.
Mr and Mrs Mullan gave evidence that they were not provided with a copy of Ms Moll’s written response to the allegations and as such had no regard to it when deciding to terminate her employment. Mr Tankard confirmed when questioned that he had decided not to provide it to the Mullans because it would be too distressing for them to read.[6]
Mr and Mrs Mullan both gave evidence that they attended the meeting on 12 September 2024 without having made a decision to terminate Ms Moll’s employment and with the intention of listening to her response, but with a view that termination may be the outcome of the process.[7] However, they both separately gave evidence that whilst no decision had been made going into the meeting, they did not take a break in the meeting to consult with Mr Tankard about the final decision to bring Ms Moll’s employment to an end. Mr Tankard, however, communicated the decision to terminate the employment of Ms Moll during the meeting.
For her part, Ms Moll noted that her detailed response to the allegations was not referred to at the meeting but she had “turned up at the meeting presuming that everyone had read my show cause response”[8]. She said Mr Tankard read out the allegations and said that those present had considered the evidence and had decided to terminate her employment.
Ms Moll said in her detailed application: “The meeting that was supposed to consider my side of the situation was over in less than 30 minutes and most of that time was spent on post termination logistics!”[9] Ms Moll confirmed that she was directed to return property of Riverland Funerals in her possession by noon the following day and was to attend the workplace to collect her personal belongings after normal business hours.
Later, on 12 September 2024, Mr Tankard sent a letter of termination to Ms Moll that was signed by him, was not on letterhead of either KBA or Riverland Funerals and included the phrases: “I was considering a disciplinary outcome” and “I have decided to terminate your employment for serious misconduct effective immediately.”
Date of termination
In her written and oral submissions, Ms Moll asserted that her termination took effect on 13 September 2024. She says this was the case because Mr Tankard directed her to return any property of Riverland Funerals in her possession by noon on 13 September 2024.
Ms Moll says therefore that 14 September 2024 was the first day of the 21 day statutory time period and that when she filed her application at 1:18am on 4 October 2024, it was filed within time.
Ms Moll otherwise agrees that Mr Tankard informed her of the termination of her employment in the meeting of 12 September 2024 and written correspondence sent to her later that day confirmed the termination was on the basis of serious misconduct and was effective immediately. Ms Moll did not perform any work for the Respondent after that date.
Ms Moll is incorrect in her view that her termination took effect on the date she returned the property of Riverland Funerals to her former workplace. A direction to return property belonging to the employer and the returning of that property does not amount to work being performed which extends the date of termination to that date.[10]
There is no dispute that Ms Moll was informed of her dismissal on 12 September 2024 and it was confirmed in writing on the same day that the dismissal took effect immediately. This is the date of termination.
21 days from the date of dismissal is 3 October 2024. The application was filed one day late on 4 October 2024, not long after 3 October 2024 concluded at midnight. Nevertheless, the application was filed late and it is necessary that I consider whether exceptional circumstances exist in this matter that would enliven consideration of the use of the Commission’s discretion to extend the time for Ms Moll to file her application.
Extension of time considerations
Section 394(3) of the Fair Work Act 2009 (Cth) (the Act) requires that when considering whether to grant an extension of time, the Commission must take into account the following factors:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether exceptional circumstances exist.
It is well established that the matters relied as exceptional circumstances must be:
“out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional.”[11]
Reason for the delay
Ms Moll claimed that filing her application late was of no consequence as it was filed in the early morning of 4 October 2023 and “would not be seen by Commission staff any earlier than the start of business.”[12] The concern with filing an application within the statutory time period is about meeting a requirement of the Act rather than when Commission staff might process the application.
As a Full Bench of the Commission said in Johnstone v Scotch College:[13]
“We note that the statutory requirement as to the time in which an unfair dismissal application may be filed is not a mere technicality. Such time limits are a fundamental part of the statutory framework and must be properly considered by decision makers. In these circumstances, the Appellant’s application was clearly filed one day late. The Act does not require the Commission to consider the number of hours involved in a late application.”
With respect to the length of the delay in this matter being one day, the Commission found in Ozsoy v Monstamac Industries Pty Ltd [14]:
“The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional.”[15]
The filing of the application by Ms Moll one day late is not a mere technicality. Exceptional circumstances must be found to exist in the period of delay before the Commission’s discretion to extend the time can be enlivened.
In determining the reasons for delay in filing the application, the delay to be considered is the period after the 21 day statutory time limit expired. However, the circumstances for the applicant in the period from the date of dismissal must be considered to ultimately determine whether there is a sufficient reason for the delay beyond the 21 day period that would be out of the ordinary course.
The Full Bench of the Commission in the matter of Shaw v Australia and New Zealand Banking Group Ltd T/A ANZ Bank[16] held:
“The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of dismissal to the end of the 21 day period. 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 and ultimately whether that reason constitutes exceptional circumstances.”[17]
The above matter was referenced in the decision of Diotti v Lenswood Cold Stores Co-op Society T/A Lenswood Organic[18]. The Full Bench in that matter said: “the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances.”[19]
Ms Moll set out her reasons for delay in the written statement she filed in advance of the hearing. She expanded on those reasons in her oral evidence. The reasons Ms Moll relied on for filing her application late were as follows:
(a)It took her a week following her dismissal to “think clearly enough to even discuss submitting an Unfair Dismissal Claim.[20]”;
(b)She did not want to further fracture relationships in her family by commencing the claim;
(c)After the dismissal, Ms Moll needed to assist her son with his childcare responsibilities after his family break up;
(d)She was exhausted and stressed and spent much time when not caring for her grandchildren catching up on sleep;
(e)She was “hampered” in her efforts to collect information to support her claim by being refused access to her work emails by the Respondent;
(f)She had agreed to assist a family as a celebrant for a funeral on 4 October 2024 and preparing for the funeral “consumed a lot of [her] time”;
(g)Ms Moll was not able to speak to her older siblings, in particular her sister Christine Magner, who has human resources expertise, until 1 October 2024 and at that time Ms Magner encouraged Ms Moll to lodge an unfair dismissal claim;
(h)As Mr Tankard had been “prescriptive” about Ms Moll’s actions on 12 and 13 September, Ms Moll had focussed on the date of 13 September 2024 and that date “committed to [her] memory as when [her] dismissal took effect.” That is, Ms Moll had the wrong date in her mind as the date of her termination;
It took Ms Moll “much longer than anticipated” to add the detailed background information she thought necessary to include in her application; and
(j)It was only at the “last minute” when going through the documents to attach to her application that Ms Moll noticed that Mr Tankard had referenced 12 September 2024 as the date of termination. This “confused and rattled” her and necessitated a review of the application to amend references to 13 September 2024 as the date of termination.[21]
None of the reasons offered by Ms Moll, either individually or collectively are out of the ordinary course, unusual, special or uncommon and are circumstances routinely or normally encountered.
Ms Moll, for admirable reasons, stepped in to assist her son with childcare during a difficult time. She also experienced common reactions to a dismissal being exhaustion and stress. In addition, Ms Moll initially did not take action to file a claim to avoid further conflict, in this case with her family, which is also an ordinary circumstance for employees who have been dismissed, albeit in this matter the conflict would have been with family members. Ms Moll also delayed in filing her claim until she sought advice from her sister and was then distracted from filing her application whilst undertaking work.
Ms Moll’s evidence was that she was also mistaken about the date of termination and therefore, the date it was necessary for her to file her application to be within the statutory time period. It then took Ms Moll longer to prepare her material than expected and at the last minute she realised her error regarding the date of termination and took steps to edit her application, delaying its filing until 1:18am after the 21 day time period had expired at midnight the day prior.
Whilst a number of the reasons advanced by Ms Moll for filing her application late address the events over the days leading up to the date of filing, the reason for failing to file the application by midnight on 3 October 2024 came down to Ms Moll’s error in the date of dismissal and taking steps to edit her application as she described “at the last minute” that had her file the application a very short time after the time limit expired.
Making errors with respect to the date of termination and edits to an application at the last moment are also not reasons that are unusual, special or uncommon; they are not exceptional.
Given that compliance with the statutory timeframe is not a mere technicality, and that Ms Moll has not offered any reasons that individually or together are exceptional in nature, this consideration weighs against any finding of exceptional circumstances.
When the Applicant first became aware of the dismissal
There is no dispute that Ms Moll first became aware of the dismissal when she met with the Respondent on 12 September 2024. She was issued with a letter of termination the same day.
Ms Moll had the balance of the 21 day period in which to lodge her unfair dismissal claim. This consideration weighs against the finding of exceptional circumstances.
Any action taken by the applicant to dispute the dismissal
Ms Moll gave evidence that she had contact with Mr and Mrs Mullan about accessing her personal email in the days following the termination but did not assert that she challenged her dismissal with the Respondent.
Considering all of the circumstances in this matter, including that family relationships are involved, this consideration does not weigh in favour or against a finding of exceptional circumstances; it is neutral in my reasoning.
Prejudice to the employer, including prejudice caused by the delay
There is no assertion of prejudice to the Respondent in this matter. The claim was filed so narrowly out of time that it would be difficult to identify any prejudice to Riverland Funerals. This consideration is a neutral consideration in my decision.
Merits of the application
The merits of the application are relevant, however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[22] Further, the primary consideration is whether the Applicant has an arguable case.[23]
The Respondent gave evidence that the conduct of the Applicant over a number of months had been of significant concern to them and it had undertaken a process to raise and address the alleged misconduct of the Applicant over a period dating back to May 2024. Appropriately, there was little evidence before me about the nature of the alleged misconduct other than references to bullying and undermining conduct in the workplace. There is insufficient evidence before me that would enable me to form even a preliminary view as to whether there was a valid reason for the termination.
However, on the face of the evidence available to date, it is arguable that Ms Moll was not given an adequate opportunity to respond to the reason for the dismissal[24]. Ms Moll was presented with allegations of misconduct at a meeting on 9 September 2024 in which she was expected to respond immediately at the meeting. The allegations were then later provided in writing in a letter of 10 September 2024. The allegations contained in that letter were so general that the nature of the misconduct was not clear. For example, allegation 3 was: “Undermining comments directed at suppliers” and others referred only to “undermining behaviour and comments” with no specificity as to what comments and behaviour the allegations referred to.
On the evidence before me, Ms Moll was not offered an opportunity to respond in writing. When directed to attend a show cause meeting, she provided a written response in advance of that meeting to Mr Tankard for the consideration of Mr and Mrs Mullan. The Applicant’s response was not passed on to Mr and Mrs Mullan. Mr Tankard gave evidence that he was not a decision maker with respect to the termination[25], rather it was Mr and Mrs Mullan, but agreed that he made a decision not to provide the Applicant’s written response in an effort to preserve family relationships[26]. Mr and Mrs Mullan gave evidence that they were not aware until after Ms Moll had been informed of her dismissal that she had even submitted a written response for their consideration.
Ms Moll gave evidence that she assumed that her lengthy response had been read by Mr and Mrs Mullan. I note that in the Respondent’s Form F3, they say: “During the show cause meeting on September 12, the applicant was given the opportunity to respond. She was asked twice before the conclusion of the meeting if she had any additional comments, to which she replied “She didn’t”.[27] Mr and Mrs Mullan gave evidence that they intended to consider any responses given by Ms Moll in the 12 September 2024 meeting but as she did not offer much by way of any explanation in the meeting, the decision was made to terminate her employment. However, the termination was conveyed by Mr Tankard in the meeting, without Mr and Mrs Mullan confirming their decision with Mr Tankard either during the meeting or in a private discussion taken in a break[28].
The above matters suggest that Ms Moll may have an arguable case with respect to the fairness of the procedure afforded to her. It appears on the evidence currently available that Ms Moll was not provided with specific allegations of misconduct in writing, allowed an opportunity to reflect on the allegations before providing a response or offered an opportunity to respond in writing. When Ms Moll took the step of preparing a lengthy response, it was not provided to the people making the decision about the continuation or otherwise of her employment. Further, when attending a meeting to assert why her employment should not be terminated, it seems that Ms Moll did not make further submissions about the allegations, as she presumed that her detailed written response had been considered by Mr and Mrs Mullan.
The dispute about whether the dismissal was harsh, unjust and unreasonable requires findings to be made by the Commission based upon evidence not presently before me. It is not possible to make a more definitive assessment of the merits without hearing detailed evidence about the facts of the matter, which is not appropriate at this stage when considering the application for an extension of time. For present purposes, it appears that Ms Moll has an arguable case at least in respect to whether she was given an opportunity to respond to any reason related to her conduct.
Given that the merits of the case cannot be determined without the benefit of detailed evidence, this consideration does not weigh in favour or against the finding of exceptional circumstances. It is a neutral consideration.
Fairness as between the person and other persons in a similar position
Nothing of relevance has been raised by the parties in respect of this consideration.
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[29] considered this criterion and said:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”[30]
I noted earlier that compliance with the time limit prescribed by the Act for filing an unfair dismissal claim is not a mere technicality. The shortness of time in the delay does not detract from the need for exceptional circumstances to exist for the extension of time to be granted, nor is the shortness of time of itself an exceptional circumstance. The Commission has considered and refused other applications with similarly short delays where no exceptional circumstances exist. It would create unfairness as between the Applicant and other persons in a similar position if Ms Moll were to be granted an extension of time based on the shortness of delay when none of the reasons she advanced for the delay are exceptional.
Conclusion
On balance, I find that the considerations in section 394(3) of the Act applied to this matter do not favour a finding of exceptional circumstances. The reasons offered by Ms Moll for the delay, when considered individually or together, are not exceptional. The consideration of fairness between Ms Moll and others in a similar position weighs against a finding of exceptional circumstances and the other factors are neutral in my decision.
Accordingly, there is no basis to order an extension of time for the lodgement of this application. As the application was lodged beyond the 21 day statutory time limit provided by section 394(2)(a) of the Act and an extension of time has not been granted, there is no valid application before the Commission.
It is therefore appropriate to dismiss the application. An order to that effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
S Moll, the Applicant on her own behalf.
T Mullan and R Mullan for Riverland Funerals Pty Ltd, the Respondent.
Hearing details:
Adelaide (by Video via Microsoft Teams)
2024
13 November.
[1] Respondent’s Form F3 at paragraph 3.1.
[2] Ibid.
[3] Audio recording of hearing – part 1 at 2:13:24-2:14:13, 2:15:40-2:16:06.
[4] Letter to Applicant from KBA dated 10 September 2024.
[5] Ibid.
[6] Audio recording of hearing – part 2 at 26:55.
[7] Audio recording of hearing – part 1 at 1:12:15- 1:12:39, 1:54:32-1:55:17.
[8] Audio recording of hearing – part 1 at 18:21-18:27.
[9] Applicant Form F2 at page 10.
[10] See Beet v dormakaba Australia Pty Ltd [2022] FWC 784 at [13].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[12] Applicant’s Outline of Argument at paragraph 6b.
[13] [2022] FWCFB 179 at [31].
[14] [2014] FWC 479.
[15] Ibid at [21].
[16] [2015] FWCFB 287.
[17] Ibid at [12].
[18] [2016] FWCFB 349.
[19] Ibid at [31].
[20] Applicant’s Witness statement at paragraph 13.
[21] All references are to the Applicant’s statement paragraphs 13 – 27.
[22] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph 14.
[23] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[24] See section 387(c) of the Act.
[25] Audio recording of hearing – part 2 at 36:42.
[26] Audio recording of hearing – part 2 at 32:45-33:10.
[27] Respondent form F3 at paragraph 3.1.
[28] Audio recording of hearing – part 1:56:47-1:57:12.
[29] [2016] FWCFB 6963.
[30] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd[2023] FWC 750.
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