Ms Angela Offer v Suzanne Grae Corporation Pty Ltd T/A Suzanne Grae

[2011] FWA 9169

[2011] FWA 9169

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Angela Offer
v
Suzanne Grae Corporation Pty Ltd T/A Suzanne Grae
(C2011/6414)

COMMISSIONER CLOGHAN PERTH, 22 DECEMBER 2011

Application to deal with contraventions involving dismissal.

[1] On 7 November 2011, Ms Angela Offer (“the Applicant”) made application to Fair Work Australia (FWA) to deal with an alleged contravention of Part 3-1 of the Fair Work Act 2009 (“the FW Act”) involving a dismissal.

[2] The alleged contraventions in the application are said to have been committed by her employer, Suzanne Grae Corporation Pty Ltd T/A Suzanne Grae (“the Employer”).

[3] The application was made pursuant to s.365 of the FW Act.

[4] Ms Offer, in her application, states that she commenced employment on 30 March 2011 and on 11 April 2011 was informed by the Manager “not to come in to do shifts”. Further, “I assumed I would be re-employed when a stalker was found guilty on 30 August 2011”.

[5] The Employer denies the alleged contraventions, and furthermore, asserts that the Applicant volunteered her resignation, which was accepted on 16 April 2011.

[6] Section 365 of the FW Act enables FWA to deal with a dispute alleging contraventions involving a dismissal, if the application was made within 60 days after the dismissal took effect or such longer period as FWA allows.

[7] Irrespective of whether one accepts the date of termination of the employment relationship as 11 April 2011 or 16 April 2011, Ms Offer’s application was made after the lapse of the 60 day period.

[8] Should the application not be made within 60 days, subparagraph 366(1)(b) of the FW Act provides for FWA to allow a further period if it is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[9] On 30 November 2011, I invited the Applicant to make a submission on the criteria outlined in paragraph [8] and any other matter she considered relevant as to why I should extend the time to file the application to 7 November 2011.

APPLICANT’S SUBMISSION

[10] On 3 May 2010, the Applicant’s ex sister-in-law gave a written undertaking to the Magistrate’s Court regarding approaching Ms Offer. After commencing employment with the Employer, Ms Offer’s ex sister-in-law attended the store in which she was employed. As a consequence, the Applicant made application to the Magistrate’s Court for a Violence Restraining Order (VRO).

[11] The application for the VRO was initially set down for 27 May 2011 but rescheduled for 30 August 2011. On 30 August 2011, the Applicant was granted a VRO against her ex sister-in-law.

[12] The VRO appears to be the culmination of what the Applicant describes as “4 years and 2 months [of being] harassed, threatened and stalked...”

[13] While the Employer concedes that the Applicant’s ex sister-in-law attended its store on three or four occasions, it was only on one occasion when Ms Offer was working. In my view this information is not a reason for delay in filing the application but background context.

[14] This context, while regrettable for Ms Offer, is a personal matter and not one which the Applicant alleges the Employer has any responsibility for.

[15] Ms Offer asserts that the hearing into her application for a VRO was delayed because another employee of the Employer who was a witness was overseas from 12 August 2011 until 25 August 2011. While it is a fact that the other employee was a witness, the postponement of the hearing into the application on 27 May 2011 was unrelated to the witness’ availability. Again, in my view, this submission by the Applicant, while providing context to her particular personal circumstances, does not explain why, if she was dismissed on 11 April 2011 [which the Employer denies], she could not have made application to FWA within 60 days.

[16] The third reason Ms Offer asserts for the delay in filing the application is that she “merely waited for the court case verdict on 30 August. After this date I saw Hayley [Store Manager] to recommence my shifts, she refused...”

[17] The Applicant does not assert that she had entered into any arrangement with the Employer either verbally or in writing to substantiate the position that she would recommence employment at the conclusion of her VRO application in the Magistrate’s Court. Further, several weeks after 11 April 2011, Ms Offer returned her name badge and on 27 May 2011 returned, without the Employer’s request, training materials to the Manager - such actions are, in my view, inconsistent with an arrangement to wait until the conclusion of a court hearing, especially in the absence of a formal written arrangement.

[18] While not contained in the Applicant’s submissions, the Employer has provided an email from Ms Offer of 13 September 2011 in which she claims to be an “existing employee” but also “hoping to resume my position as soon as possible” and appreciating the Employer’s “understanding in this matter”. The email was not responded to by the Employer because its records indicated that Ms Offer had resigned from her employment. The Applicant did not pursue her email to the Employer of 13 September 2011.

CONSIDERATION AND CONCLUSION

[19] Having considered what the Applicant contends as the reasons for delay, I am unable to determine there are exceptional circumstances. The fact that the Applicant was involved in court proceedings on a personal matter does not constitute exceptional circumstances. Being involved in court proceedings does not preclude a person from applying themselves to other matters, especially if they consider they have been unfairly dismissed from their employment.

[20] The facts are that if the Employer informed Ms Offer “not to come in to do shifts” on 11 April 2011 (which the Employer denies), it was 210 days before she took any action to dispute the alleged dismissal; this is 150 days beyond the 60 days time limit. Being out of time by 150 days, and for no apparent reason, does not constitute exceptional circumstances.

[21] In the alternative, if the Applicant considered she would return to work on 30 August 2011, after the Magistrate’s Court hearing, it took her 69 days to make application to FWA; this is also out of time. With respect to the alternative proposition, I am unable to discern any foundation to such an arrangement. In putting this alternative position, Ms Offer contradicts her application to FWA which alleges that she was dismissed on 11 April 2011. Further, in the Applicant’s written submission she states “at no stage was I dismissed...I merely waited for the court case verdict on 30 August 2011”; this statement also contradicts her original application. Finally, even if I accepted such a proposition, Ms Offer has established no exceptional circumstances as to why she did not file the application within 60 days from 30 August 2011.

[22] In respect to the other matters in s.366 of the FW Act, with the possible exception of the email of 13 September 2011, Ms Offer took no action to dispute the alleged dismissal until the filing of the application. Any proceedings, particularly with respect to an alleged dismissal will be affected by the passage of time; this is particularly so in view of the fact that the Employer denies that Ms Offer was dismissed and the lack of specificity in relation to alleged contravention of Part 3-1 of the FW Act. Finally, in regard to the merits of the application, the Employer, in its response to Ms Offer’s application, has set out in detail the circumstances in which the Applicant worked four complete shifts and attended for work on 15 April and 16 April 2011. On 16 April 2011, it is alleged that Ms Offer volunteered her resignation. Although the facts of what happened on these days would, if necessary, be a matter of evidence, it is notable that the Applicant did not dispute the details of what is alleged by the Employer, but made general objections.

[23] Having taken into account and considered the relevant provisions of s.366 of the FW Act, I am not satisfied there are exceptional circumstances to extend the filing of the application to 7 November 2011. Accordingly, an order will be made dismissing the application.

COMMISSIONER

Final written submissions:

1 and 9 December 2011

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