Ms Aiza Jitungo v James Place/ Tomato Backpackers/ Kozpropick Pty
[2020] FWC 3566
•8 JULY 2020
| [2020] FWC 3566 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Aiza Jitungo
v
James Place/ Tomato Backpackers/ Kozpropick Pty
(U2019/9861)
COMMISSIONER BOOTH | BRISBANE, 8 JULY 2020 |
Application for an unfair dismissal remedy.
[1] This is an application for unfair dismissal relief brought by Ms Aiza Jitungo (the Applicant) regarding her employment in a café, At James Place. The Respondent/Employer, Kozpropick Pty Ltd, operates the café at a backpacker hostel, Tomato Backpackers in Bundaberg. The company and its facilities are operated by Mr James Lee and Mrs Candice Lee who are husband and wife.
[2] Ms Jitungo was employed at the café from 9 April 2018 until her dismissal following a workplace altercation on 10 August 2019. Ms Jitungo also had an unrelated contractual arrangement with the Respondent relating to beauty services. That commercial relationship was also terminated shortly after.
[3] The Employer raises two jurisdictional objections that are the subject of this decision, namely:
• the application was lodged outside the statutory time of 21 days; and
• Ms Jitungo was not dismissed but in fact resigned her employment.
[4] This case was complicated by the poor state of the evidence. Further, there were considerable delays in progressing the matter as issues were worked through including the Respondent abandoning certain jurisdictional objections.
[5] Ultimately, I have decided that there is enough evidence to answer the jurisdictional questions. For reasons stated below I found that Ms Jitungo in fact resigned (or abandoned her employment) after an unsavoury incident at work: she was not dismissed by her employer. It follows that her application must be dismissed on this jurisdictional basis.
[6] Conciliation was attempted on 16 October 2019 but without success. The Employer raised multiple jurisdictional objections. The matter was subsequently allocated to my Chambers. Over the ensuing time evidentiary issues were pursued and some of the jurisdictional objections disposed of.
[7] A Hearing was conducted on 12 May 2020 by telephone to deal with the remaining jurisdictional issues. Ms Jitungo was self-represented; the mployer was represented by Mr Bae of Park & Co. Lawyers.
Background
[8] On 10 August 2019 Ms Jitungo was working at the café with Ms Brown and Mr Fitzsimmons. The evidence was that Ms Jitungo and her colleagues had only a basic workplace relationship. On her account she was a friend of Mr and Mrs Lee when she was employed at the café.
[9] At the time of the incident that led to Ms Jitungo’s leaving employment, Mr Lee, it seems, was in earshot, but Mrs Lee was not present at the time. On Ms Jitungo’s evidence Ms Brown had left the freezer door ajar, a problematic matter as the freezer was playing up.
[10] On Ms Jitungo’s version of events she required Ms Brown to close the door in a normal tone. The Employer’s evidence through Ms Brown and Mr Fitzsimmons, is that Ms Jitungo was verbally aggressive to Ms Brown.
[11] Mr Lee left the café to talk to Mrs Lee. Ms Jitungo said Mrs Lee came to the kitchen and was telling everybody there was to be no blaming in the kitchen and if someone made a mistake to just correct it straight away, and if the door is open staff were just to close it. Ms Jitungo said she felt that those words were directed to and were critical of her. She decided to follow Mrs Lee into the reception after she had completed an order and talk to her about it.
[12] Ms Jitungo said Mrs Lee started to raise her voice at her and the conversation became intense. Ms Jitungo’s evidence was that she told Mrs Lee that she did not have to yell and scream and be upset and that there was no problem and it was just the door. Ms Jitungo said that Mrs Lee started shouting at her, saying to get out and not come back to work. She gathered Ms Jitungo’s bag and threw it at her. Ms Jitungo said Mrs Lee screamed at her “you’re fired, get out here, don’t come back, don't work here anymore.”1 Ms Jitungo said Mr Lee then tackled her with both his arms while dragging her all the way down the hallway while Mrs Lee chased her. Ms Jitungo said that Mr Lee covered her mouth with his hand and dragged her to the back toilet and commanded her to stay there until his wife calmed down.
[13] Ms Jitungo left the café after this altercation and did not return. It seems she called the police and a police investigation remains on foot.
[14] Ms Brown’s evidence was that the atmosphere at the café that day was tense. She left the freezer room door ajar while sorting stock and cleaning and Ms Jitungo yelled at her. She says Mr Lee entered the café and inquired how the café was going at which point Ms Jitungo again raised her voice and spoke aggressively about the freezer door. At this point Mr Lee departed and Mrs Lee entered asking everyone to get along, speaking calmly. She asked Ms Jitungo to join her in reception and Ms Brown heard Ms Jitungo shouting from there but could not hear the words.
[15] Her evidence was that Ms Jitungo later returned to the café, distressed, mumbling about Mrs Lee hitting her and that she had called the police. She collected her handbag and left, returning shortly after with her partner. She saw Ms Jitungo, her partner and Mrs Lee having a civil discussion over coffee when Ms Jitungo then stood and began shouting and swearing at Mrs Lee who told Ms Jitungo to leave. Ms Jitungo, her partner and the Lees all left, and the police arrived.
[16] Over the course of these events Ms Brown says she heard Ms Jitungo say multiple times that she was “never coming back”.
[17] Mr Fitzsimmons works as a barista and manages the café’s till. He is usually located at front of house and not in the store. His evidence was that Ms Jitungo was often aggressive, yelling, shouting and rude to her co-workers. On the day in question he heard Ms Jitungo yelling about the freezer door, and later, shouting at Mrs Lee. This continued for some time. He could hear Ms Jitungo’s raised voice but not anyone else’s voice. While he could not hear the words for the most part, he deposed that he heard Ms Jitungo say she was never coming back. He says he heard Mrs Lee ask Ms Jitungo to leave the café and that Ms Jitungo was swearing and crying. She left, but he shortly after saw Ms Jitungo and her partner having coffee with Mr Lee. Mrs Lee then raised her voice at Ms Jitungo and demanded she leave. Mr Fitzsimmons’ evidence was that Ms Jitungo was upset, swearing and said that she was never coming back, that she was leaving, quitting.2
[18] As mentioned, both Mr Lee and Mrs Lee gave oral evidence at the hearing. I am unable to use that evidence. The evidence in chief was so heavily led that it is not, in my view, reliable. Ms Jitungo’s cross-examination (conducted in person) was largely in the form of interruptions and comments.
[19] However I have before me the statements and oral evidence of Ms Brown and Mr Fitzsimmons for the Employer and that of Ms Jitungo on her own behalf. There is enough, reliable material for me to reach conclusions on the facts as they relate to the two jurisdictional matters.
[20] On the statements of the two employees, at hearing I tested both witnesses (independently) about the similarities of the written statements. On balance I am satisfied that the evidence is their own evidence and the similarities arise from a combination of honest and reliable recall of the same facts and assistance they received from another employee, Roy or Rory. Both witnesses deposed that the statements are their own words despite the similarities. I found no reason to disbelieve either witness in that regard.
Consideration: dismissal
[21] Ms Jitungo contends she was dismissed from her employment. The Respondent contends that she was not dismissed but left employment of her own volition. That is the basis of their jurisdictional objection: there can be no unfair dismissal remedy if the employee was not dismissed but left employment of her own choice.
[22] The evidence is clear on the basic facts: there was an incident on the day in question involving the freezer door being left open; there were heated words between Ms Jitungo and Mrs Lee; police attended, seemingly at Ms Jitungo’s request; and Ms Jitungo ceased employment that day.
[23] To answer the jurisdictional objection the Commission must determine whether the cessation of employment was by way of dismissal or otherwise.
[24] Ms Brown and Mr Fitzsimmons’ evidence that Ms Jitungo said she was never coming back, and that she was leaving, is persuasive. This is consistent with Ms Jitungo’s own evidence that she did not wish to work for the café anymore. Where their evidence is different to the Applicant’s evidence, I prefer their evidence.
[25] The evidence supports a conclusion that Ms Jitungo left employment of her own choice after the breakdown in the relationship with Mr and Mrs Lee. Accordingly, I find that Ms Jitungo resigned (or possibly abandoned) her employment with Kozpropick Pty Ltd. The jurisdictional objection is upheld; Ms Jitungo's application must be dismissed.
Extension of time
[26] Ms Jitungo was dismissed on 10 August 2019. She had under s. 394 of the Act 21 days to make application for unfair dismissal relief. the 21-day period expired on Saturday 31 August 2019, but by application of s. 35 of the Acts Interpretation Act 1901, the application had to be filed by Monday 2 September 2019, which is the next working day.
[27] The evidence indicates the application was electronically filed at midnight that day, at the cusp of Tuesday 4 September 2019.
[28] Midnight is both the expiration of day past and the commencement of the next day: Prowse v Mcintyre (1961) 111 CLR 264; (1961) 111 CLR 264, 273, 274 per Kitto J. and 278 per Windeyer J. If lodgement did take place at that midnight moment, the application was made in a timely way and the jurisdictional objection must be dismissed. If, however it was in fact lodged after midnight it would be out of time, and Ms Jitungo’s request for additional time should be considered.
[29] As I have already found the application must be dismissed for other reasons, it is not necessary for me to determine this point, but for sake of completeness, I considered the question, should the true facts show the application was lodged after midnight. For reasons that follow I would exercise my discretion to grant addition time on the basis that exceptional circumstances exist.
[30] Time may only be extended if there are “exceptional circumstances” supporting the exercise of the Commission’s discretion measured against six prescriptive factors listed in s.394(3).3 See also the authoritative explanation in Nulty v Blue Star Group Pty Ltd.4
[31] The six factors are briefly examined below.
(a) the reason for the delay
[32] Ms Jitungo said that she lodged her application at midnight on day 21 and was therefore not out of time. As explained above this is not entirely correct, but none-the-less filing on or before midnight on Monday 2 September would have been acceptable. Nonetheless, Ms Jitungo provided some further detail around the reasons for her not filing earlier.
[33] In her email of 28 April, Ms Jitungo said after her alleged dismissal, she felt very stressed every time she tried to remember what happened on 10 August. Ms Jitungo said she felt humiliated and physically and mentally hurt. Ms Jitungo also said she was left without the ability to pay rent and bills. There was no independent medical evidence filed in support of these propositions.
[34] At the hearing, Ms Jitungo went into some detail about the circumstances leading to the application being lodged. She had made enquiries with ASIC and the Fair Work Ombudsman and had completed a claim with the Fair Work Ombudsman, made a police report, and has said she made a workplace bullying complaint (there is no record of a bullying application to this Commission but she may have made a bullying complaint to another authority).
[35] From this it is clear Ms Jitungo was taking active steps with other authorities and weighs against extending time here. On the other hand, the very high levels of distress felt by the parties was evidence on documentation and at the hearing. I accept on that basis that Ms Jitungo was indeed highly distressed and that may have explained, to some extent, why she did not file earlier.
(b) whether the Applicant first became aware of the dismissal after it had taken effect
[36] In her Form F2, Ms Jitungo notes she was dismissed ‘on the spot’ on 10 August 2019. and did not return to work after 10 August 2019.
[37] I note the complicating facts of other commercial relationships between the parties, evidenced by a text message sent to Ms Jitungo by Mrs Lee on 12 August 2019 as follows:
“Good morning Aiza,
As of today between your company and my company our working contract is all terminated. As a contractor you breached our policy on workplace harassment and bullying against multiple staffs members At James’s place. Due to this we regret to inform you that you will be no longer engaged with our company as a contractor.
You also need to collect all relevant documents regarding your company which is BEAUTY AIZA QLD PTY LTD [19 634 009 984]”
[38] On balance it seems the termination of this other commercial arrangement did not give rise to any confusion as to the date of termination and this factor does not support extension of time.
(c) any action taken by the Applicant to dispute the dismissal
[39] Ms Jitungo did not make submissions in regard to this consideration. The Employer submitted that there were no actions taken by Ms Jitungo to dispute the dismissal, apart from the arguments which occurred on 10 August. I consider that this factor is neutral.
(d) prejudice to the Employer (including prejudice caused by the delay)
[40] No submissions were made about possible prejudice to the Employer by either party. However, I note that the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.5 Given that any delay was relatively short, I consider this to be a neutral factor.
(e) the merits of the application
[41] The Employer submitted the extension of time to apply should not be granted considering the merits of the application, noting the alleged aggressive behaviour and calling the police. The Employer submitted it is unlikely that the alleged dismissal could be determined to be harsh, unjust or unreasonable, and it would be unfair for the extension to be granted. Ms Jitungo made no submissions.
[42] Given the facts, as they were able to be understood at this jurisdictional hearing, it could not be said Ms Jitungo’s application was completely without merit. This factor is neutral.
(f) fairness as between the person and other persons in a similar position
[43] No significant submissions were made on this criterion and I consider it to be a neutral consideration.
Conclusion: extension of time
[44] The evidence before the Commission is that Ms Jitungo in fact lodged her application on time, albeit at the last possible moment. If that is correct, the application was not out of time and the jurisdictional objection must fail.
[45] If my understanding of the time of lodgement is not correct, I consider, based on the factors above, and on the understanding that, if the application was filed late it was only momentarily so, that there exist exceptional circumstances and I would exercise my discretion to grant the extension.
[46] Either way, the jurisdictional objection based on lateness of application is dismissed.
Conclusion
[47] Ms Jitungo was not dismissed from employment with Kozpropick Pty Ltd but voluntarily left that employment. Accordingly, there is no jurisdiction in the Fair Work Commission and the application is dismissed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR720813>
1 Applicant’s Form F2 at Q3.2
2 See Transcript at PN750-753
3 Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 at [16]
4 [2011] FWAFB 975
5 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300
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