Ms Abby Ross v Hampden Imaging Unit Trust T/A Chestrad

[2022] FWC 739

[2022] FWC 739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Abby Ross

v

Hampden Imaging Unit Trust T/A Chestrad

(C2021/7045)

COMMISSIONER YILMAZ MELBOURNE, 1 APRIL 2022

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time denied.

1. On 14 October 2021, Ms Abby Ross lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Hampden Imaging Unit Trust T/A ChestRad (ChestRad). Ms Ross commenced employment in the position of operations officer on 30 January 2020[1] and her dismissal took effect 6 September 2021.

1. ChestRad submit that Ms Ross resigned from her employment and was not dismissed. Dr Murray appeared for ChestRad and submits that Ms Ross had previously made statements concerning her intention to resign; he says that he accepted her resignation on 6 September 2021. 

1. Ms Ross submits that there was no reason for Dr Murray to accept her “resignation” on this occasion, as her previous statements of resignation did not result in her termination of employment.

1. Prior to Ms Ross’ “resignation” there appears to have been concern raised by her that an incorrect quantum of her accrued annual leave was transferred from the old to the new payroll system. Ms Ross claims that the new system inaccurately recorded a negative balance, and she maintains her annual leave should have been a positive balance. Dr Murray, representing the Respondent, contested the submissions that the new payroll system inaccurately recorded the leave balance for Ms Ross.  

1. Further Ms Ross submits that she recalls while looking at Dr Murray’s emails on 3 September 2021, that she noted a discussion between him and a fellow director where he stated that “he was inclined to let Abby go.” Ms Ross submits that her concerns about her leave accrual together with Dr Murray’s email led to her feeling anxious, so she took the rest of the week off for “stress leave”.  Dr Murray and Ms Ross are in dispute whether her role permitted her to access his emails, and the Respondent submits that Ms Ross had taken “unjustified” sick leave and personal leave.

1. Ms Ross submits that some time prior to her resignation, an issue with a co-worker resulted in her being asked to leave the workplace, while the directors met with the employee. Ms Ross submits that she met with Dr Murray and his wife on 3 September 2021 and was informed that a mediation between herself and another employee would take place. Ms Ross submits that she was informed during that discussion that it was possible that she, the other employee or both may be dismissed. Ms Ross feels aggrieved that she felt she had to participate in a mediation because the other employee, who Ms Ross says had also resigned, had issues with performing her work.

1. Ms Ross further submits that on her return to work after her period of stress leave, she felt she was being ignored. Ms Ross submits that Dr Murray informed her that she would be required to work on reception and that creation of titles in the workplace was unnecessary. Dr Murray submits that Ms Ross stated that she would not return to work if she had to work on reception.  It is apparent that both Ms Ross and Dr Murray had a disagreement over titles and their authority in the workplace.  

1. Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 17 days after the 21-day statutory time limit.

Applicant’s submissions

1. The somewhat vague submissions concerning the alleged workplace rights and contraventions of the general protections provisions indicates that Ms Ross does not fully comprehend the provisions of the Act on which she relies for her application. 

1. Nevertheless, I observe that Ms Ross submits that her change to her employment and termination of employment is a contravention of her workplace rights in respect to s.343 Coercion, s.344 undue influence or pressure, and s.348 in relation to coercion of industrial activities. No detailed submissions were made concerning the alleged contraventions other than:

·   The job description was altered without notice and after taking a period of “stress leave”

·   Ms Ross had her email account “deleted” after a conversation where she was informed she would be returning to work two days a week on reception.

1. During the hearing Ms Ross added that she selected from the list of contraventions those she thought relevant taking into account her description of Dr Murray’s behaviour towards past staff, his statements to her that he is untouchable by “Fair Work” and statements to her that staff did not want her back. 

1. It is not contested that after Ms Ross was advised to work on reception that she responded to Dr Murray by text message saying “in that case I won’t be back”, and in that same text conversation Dr Murray responded “I’ll take that as your resignation.” Ms Ross is aggrieved that Dr Murray accepted her resignation when she had threatened her resignation previously but did not act on the threats. Neither tendered in evidence copies of the text messages. Dr Murray transcribed the text messages into his outline of evidence, and I observe that the content of the reference to the messages was not contested.

1. By way of remedy, Ms Ross is seeking redundancy pay and the balance of her annual leave accrual.  

Respondent’s submissions

1. The Respondent described the events leading to the Applicant’s resignation as unfolding in a “crescendo-like manner.” It was submitted that Ms Ross had taken time off work and on more than one occasion left or did not present for work without warning. He described Ms Ross “in the throws of establishing her own new business.” He also stated that Ms Ross “disparaged” another employee under her supervision and engaged in inappropriate after-hours communication. It was also submitted that Ms Ross had lost the confidence of five other employees and for those reasons it was unsurprising that she had resigned.[2]

1. The Respondent maintains that Ms Ross resigned by text on 6 September 2021 and her resignation was accepted the same day. Threats to resign or statements of intent to resign had been made previously, and Dr Murray acknowledged Ms Ross’ stress of establishing her own business and together with the issues in the workplace with the other employee contributed to the acceptance of the resignation. Dr Murray maintains that Ms Ross was not dismissed by the Respondent and contends the application is out of time.

Consideration

1. General protections applications involving dismissal must be made within 21 days.

1. However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a)The reason for the delay; and

(b)Steps taken to dispute the termination; and

(c)Prejudice to the employer; and

(d)Merits of the application; and

(e)       Fairness between the person and other persons in a like position

1. The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[3] where it was held that:

“To be 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. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[4]

1. I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

1. The general protections involving dismissal application was lodged with the Commission on 14 October 2021, 17 days late. Ms Ross received a text message notifying her that her resignation was accepted on 6 September 2021.

1. Ms Ross submits that her application is late because she was afraid to initially lodge an application because Dr Murray advised her that the other Directors would take action against her for “breaking into” their payroll software after her dismissal to obtain information regarding her leave entitlements. She states that she had seen one of the Directors on the street near her café and stopped him to have a conversation. Ms Ross submits that during the discussion it became apparent to her that the other Directors were not aware of the reasons for her departure, nor the alleged threat as conveyed to her from Dr Murray, that the Directors would take action against her. On receipt of that information, Ms Ross states that she then lodged a general protections application.[5]

1. During the hearing Ms Ross added that she tried to communicate with Dr Murray after 6 September 2021 about her dispute with the other employee without any success and this also led to the delay in filing her application. In response to questions from the Commission, Ms Ross stated that her attempts to communicate with Dr Murray did not occur until 29 September 2021. No further explanations for delay were given between 30 September and the filing date of 14 October 2021.

1. An extension of time application requires a credible reason for the delay.[6] Having regard for Ms Ross’ reasons for the delay, while it may be reasonable for her to be concerned that legal action against her might be taken for accessing the respondent’s software post termination, the reason is not out of the ordinary, unusual, special or uncommon. Her fear of retribution is not sufficient to be a credible reason for delay, nor is her explanation regarding seeking to resolve the dispute directly with Dr Murray. I consider the reasons given for the delay do not weigh in her favour.

Steps taken to dispute the termination

1. Ms Ross submits that she continually questioned why she was in her “predicament”[7] but was not given a reply. The Respondent did not address this consideration.

1. While the Applicant questioned why she was in her predicament, and made efforts to communicate with Dr Murray, this action did not put the Respondent on notice that she would contest their acceptance of her resignation as a dismissal. The absence of evidence regarding the nature of the communication while unhelpful, I do accept the submissions that efforts were made by Ms Ross to speak with Dr Murray. On this basis I consider this to be a neutral factor.  

Prejudice to the employer

1. Ms Ross states that she does not expect the lateness of her application to cause the Respondent any disadvantage or unfairness.

1. The Respondent did not address prejudice or disadvantage in their submissions.

1. However, even the mere absence of prejudice is an insufficient basis to grant an extension. This consideration therefore is neutral.

Merits of the application

1. Ms Ross submits that her query into her leave balance, the conduct where she says she was ignored for 11 days and the request that she participate in mediation all relate to the merits of her application. 

1. Ms Ross in her application makes reference to the following alleged contraventions of the general protection provisions in the Act: 

·   s.343 Coercion in respect of workplace rights

·   s.344 undue influence or pressure in respect of her workplace rights, and

·   s.348 coercion of industrial activities.

1. During the hearing Ms Ross further explained the alleged contraventions in the following terms:

·   The Respondent has bullied or pushed employees into leaving their employment,

·   The Respondent has an attitude that “Fair Work” can’t come at them

·   The undue influence/ pressure relates to the submission that she was ignored or Dr Murray’s refusal to meet with her and statements that “the staff don’t want you back”.

1. Ms Ross’ submissions concerning the general protection provisions were vague while addressing the alleged general protection contraventions in respect to her application. Further she does not contest that she resigned, but also refers to her termination of employment as being fired. Ms Ross does not sufficiently articulate how the conduct which she identifies as concerning amounted to adverse action against her.

1. Ms Ross and Dr Murray described various events leading to the resignation, In the course of the hearing it was also revealed that the receptionist which Ms Ross had issues with was her sister-in-law; there were disagreements and issues between them in the workplace. It was submitted that Ms Ross failed to order essential items for the clinic, which resulted in the in a complaint to the Directors by the receptionist. Ms Ross sought assistance from Dr Murray when the receptionist refused to work an extra hour, presumably overtime. Ms Ross submits that the emails Dr Murray describes as inappropriate were private messages she sent to her sister-in-law. It is apparent that the issues between the two sisters-in-law spilled into the workplace causing disharmony in the working relations between staff and Directors.

1. The Respondent submits that Ms Ross resigned on 6 September 2021 and her resignation was accepted on the same date. Dr Connor submits that Ms Ross threatened to resign over prior months and admits to this in her email of 9 September 2021. In a written response to Ms Ross from Dr Murray it states:

“Your resignation came on the back of a crescendo of non attendances and sudden disappearances at work with minimal or no notice, which in our experience typically heralds a resignation. In addition, you put in a physically written and legally accepted form of notification. Also, it is clear you are overwhelmed with commitments because of your new business venture (and you have said as much in the past) so it made sense that you would be sincere. Finally, we saw it as a wise and predictable decision for you. …”[8]

1. Further oral submissions from Dr Murray related to a new business venture Ms Ross commenced with his knowledge and support. Ms Ross did not contest the submissions that she was setting up her own cafe nearby and that both she and Dr Murray openly discussed her plans and the support he could give her. Neither provided further particulars when the planned departure from the Respondent would take place, but it was evident that even though Ms Ross was a full-time employee, her attentions conceivably were elsewhere at times based on the commitment she made to her business venture.

1. Having considered the submissions and evidence tendered, I cannot conclude that Ms Ross has a meritorious application. While I have not tested the merit and it is not appropriate to do so in an extension of time, Ms Ross admits to resigning. She does not submit that she was constructively dismissed, but rather contends that it was unclear and unfair why her resignation was accepted on this occasion when she had previously resigned but was asked to reconsider. In her outline of submissions, Ms Ross describes a plan to dismiss her which she attributes to the invitation to participate in a mediation with the receptionist and because of the email from Dr Murray to another Director which she had seen. No evidence was tendered that the resignation was a result of action by the employer that left the Applicant with no option but to resign. 

1. It is evident from the submissions from both Dr Murray and Ms Ross, that they had a largely amicable and trusting relationship, although at times volatile. Unfortunately, relations were strained between the two sisters-in-law in the workplace, and this manifested in conduct that caused practical concerns for the Directors. Ms Ross openly threatened to resign on previous occasions, but on 6 September 2021, Dr Murray accepted her resignation. This is the essence of Ms Ross’ dispute with the Respondent. I am satisfied that Ms Ross was not constructively dismissed, nor is she contending that to be the case. An application under s.365 of the Act requires a dismissal, and in this matter, Ms Ross did not establish a termination of employment at the initiative of the employer; it is not contested that Ms Ross resigned and no evidence leading to the termination of employment supports a dismissal.

1. However, Ms Ross does raise concerns regarding the incorrect transfer of her leave entitlements and she tendered payslips to demonstrate the error. On this point, a crude calculation of the record Dr Murray presented of leave taken against the period of employment (assuming it is correct) did show that there was an error of 6 days. When Dr Murray offered to correct this, Ms Ross responded that the main issue was the acceptance of her resignation and not the payment of entitlements. Despite the submissions of Ms Ross, the Respondent is obligated to make good the entitlements owed to Ms Ross. While I cannot direct Dr Murray to correct the payment of entitlements owed to Ms Ross, I do recommend that he address the Respondent’s legal obligations by making good what is owed to Ms Ross.

1. For the above reasons I do not consider that Ms Ross has a meritorious case, in which to fall in her favour, although given the vagueness of the submissions and what is likely to be contested evidence concerning the events leading to Ms Ross’s resignation, at best this consideration is neutral.

Fairness between the person and other persons in a like position

1. Ms Ross submits that after the receptionist resigned, the Respondent invited both to participate in a mediation. Ms Ross accepted the invitation, and she suspects that the receptionist did not. As the Receptionist’s resignation was rejected and is still employed, while her resignation was accepted, Ms Ross submits that the Respondent unfairly chose the receptionist over her.

1. No evidence was tendered by ether party in regard to the alleged resignation of the receptionist nor the circumstances of her retention of employment over the Applicant. Ms Ross relies on her submissions and nothing more to contend unfairness between them. While it may appear that both resigned, the absence of any evidence to draw any further similarities means any assessment of fairness between the persons is difficult to ascertain. For these reasons I conclude that this consideration is neutral.

Conclusion

1. In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

1. It is on the balance of the considerations that I have decided not to grant an extension of time.

1. Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Ms A. Ross the Applicant
Dr C. Murray the Respondent

Hearing details:

11 February 2022
Melbourne (by video)

[1] Unsigned Employment Contract tendered in evidence by the Applicant.

[2] Respondent’s outline of argument.

[3] [2011] FWAFB 975.

[4] Ibid at [13].

[5] Applicant’s outline of submissions at Q4.

[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[7] Applicant’s outline f submissions at Q5.

[8] Respondent’s outline of submissions.

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