Ms Emma Milano v Koocao Pty Ltd T/A Red Rooster

[2021] FWC 551

[2021] FWC 551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Emma Milano
v
Koocao Pty Ltd T/A Red Rooster
(U2021/549)

DEPUTY PRESIDENT MASSON MELBOURNE, 15 FEBRUARY 2021

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Ms Emma Milano (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).

[2] The Applicant asserts in her Form F2 application that her employment as a store manager with Koocao Pty Ltd T/A Red Rooster (the Respondent) was terminated with effect from 7 September 2020. The unfair dismissal application was lodged on 21 January 2021.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2). The period of 21 days ended at midnight on 28 September 2020. The application was therefore filed 114 days outside the 21 day period expired. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] A hearing to deal with the extension of time application was set down for 15 February 2021. At the hearing the Applicant appeared and gave evidence on her own behalf. Ms V Cao (Franchisee Owner) appeared for the Respondent and also gave evidence.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.¹ Exceptional circumstances may 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 can be considered exceptional.²

[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

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

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

Background and Evidence

[9] Before turning to consider the matters set out at s 394(3) it is useful to summarise the relevant background and evidence.

[10] The Applicant commenced employment with the Respondent on 10 August 2015 and at the time of her dismissal was engaged on a permanent basis as a store manager and received an hourly rate of pay of $25.50. It is to be noted that the Respondent operates the Preston Red Rooster store under franchise license from Craveable Brands Pty Ltd (Craveable Brands). The Respondent took over the franchise from the previous franchisee in 2015 and at the time of the Applicant’s dismissal employed approximately 20 staff.

[11] It is not contested that the Applicant’s employment was terminated with effect from 7 September 2020. 3 The reasons provided by the Respondent for the dismissal were that the Applicant had engaged in ‘serious and wilful misconduct’. Specifically, following an investigation into allegations and concerns that the Applicant had engaged in bullying and harassing behaviour towards team members, the Respondent concluded that the Applicant’s conduct took the following form;

•  Verbally abusing team members;

•  Rude, inappropriate and abusive language being used in the workplace;

•  Commenting on team members’ physical appearance; and

•  Making racist and inappropriate comments.

[12] On 11 September 2020 the Applicant wrote to Ms Donna Tsidimas, who is a HR Business Partner with Craveable Brands, to enquire whether she was entitled to pro-rata long service leave (LSL) on termination of her employment with the Respondent. 4 She raised this query on the basis that she believed that she had been employed on a continuous basis for in excess of 7 years with the Respondent and the previous franchisee whom the Respondent took over the franchise from in 2015. What then followed between the Applicant, the Respondent and Ms Tsidimas over the next 3 months was various communication via email that sought to clarify the Applicant’s LSL entitlement based on her continuous service with the Respondent and the previous franchisee.5 Resolution of this issue appeared to have been delayed by the Respondent’s difficulty in confirming the Applicant’s prior service details with the previous franchisee.

[13] On 14 December 2020, the Respondent confirmed with the Applicant that she now had sufficient information to calculate the Applicant’s pro-rata LSL entitlement and that she expected to complete the calculation by the end of that week. 6 A payslip for the period 7 – 13 December 2020 detailed the LSL payment the Applicant was entitled to receive, being a gross amount of $8,772.00.7 That amount was paid in instalments into the Applicant’s bank account with the final payment made on 18 January 2021.

[14] Following the Applicant’s dismissal, an email was sent on her behalf on 22 September 2020 by her niece, Ms Leilani Ngametua, to Craveable Brands seeking a review of the Respondent’s decision to terminate the Applicant’s employment. 8 In response to that correspondence, Ms Tsidimas wrote to Ms Ngametua on 25 September 2020 advising that “we have reviewed the matter and I have been informed that a fair process, with appropriate evidence, was followed in relation to Emma’s termination.”9

[15] As earlier stated, the Applicant filed her unfair dismissal application on 21 January 2021.

Reason for the delay

[16] The Act does not specify what reason for delay might tell in favour of granting an extension of time however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 10

[17] The Applicant’s explanation for the delay in lodging her application is that she was concerned to secure her outstanding LSL entitlements and that this process took until 18 January 2021, following which she filed her unfair dismissal remedy on 21 January 2021.

[18] It is the case that immediately following the Applicant’s dismissal she had raised with both the Respondent and Craveable Brands the issue of her entitlement to LSL on the basis of her continuous service with both the Respondent and the previous franchisee. The fact that it took until 14 December 2020 for the Respondent to confirm that it was in a position to calculate the Applicant’s LSL entitlement and then a further 5 weeks to finalise the payment reflects poorly on the Respondent.

[19] I accept that the Applicant may have held a concern that resolution of her LSL entitlement claim may have been prejudiced by pursuit of an unfair dismissal remedy. In these circumstances she chose to prioritise resolution of her LSL claim. There was however no evidence before me that any statements were made or that pressure was brought to bare by the Respondent on the Applicant through its handling of the LSL claim that was designed to discourage or delay an unfair dismissal application by the Applicant. It appears on the material before me that prompt resolution of the Applicant’s LSL claim was hindered by incomplete and/or poor employment records arising from the Respondent’s takeover of the franchise in 2015.

[20] While the delay in finalisation of the Applicant’s LSL entitlement was understandably frustrating for her, I am not satisfied that such delay prevented the Applicant from filing an unfair dismissal application within the required 21 day period. The LSL entitlement was a statutory entitlement that existed independently of the Applicant’s right to pursue an unfair dismissal remedy. In these circumstances I do not consider the Applicant’s decision to prioritise her LSL claim over that of making an unfair dismissal remedy application, to be an acceptable or reasonable explanation for the delay.

[21] I do not accept the above explanation as preventing the Applicant from lodging the application on time or at a time earlier than the date on which this application was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[22] The Applicant confirmed in her evidence that she was notified of her dismissal on the 7 September 2020 during a disciplinary meeting, and a termination letter shortly followed on the same day. Consequently, she had the full 21 days within which to file her application. In the circumstances, I regard this as a neutral consideration.

Action taken to dispute the dismissal

[23] The Applicant’s niece wrote to Craveable Brands on behalf of the Applicant on 22 September 2020 seeking a review of the termination decision. Ms Tsidimas responded on behalf of Craveable Brands on 25 September 2020 stating that they had been advised (by the Respondent) that the dismissal was conducted fairly and on the basis of appropriate evidence. The Applicant conceded during her evidence that having received the response from Craveable Brands on 25 September 2020 she accepted that the decision would not be reversed, and her focus was then solely on securing her outstanding LSL entitlement.

[24] While it is apparent that some action was taken by the Applicant to dispute her dismissal, that process concluded on 25 September 2020. There was still 3 days between the response provided by Craveable Brands on 25 September 2020 and the expiration of the 21 day period. To the extent the Applicant challenged her dismissal with Craveable Brands, I accord it limited weight in circumstances where she could have still filed her application within the 21 day period.

Prejudice to the employer

[25] While the delay in the Applicant’s filing of an unfair dismissal claim is significant, the Respondent was unable to articulate a clear case of prejudice in circumstances where the Applicant does not seek reinstatement. In the circumstances I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[26] The Act requires me to take into account the merits of the application in considering whether to extend time. The Applicant contends that she was dismissed unfairly by the Respondent. She denies having engaged in verbally abusive, racist, or bullying conduct towards her colleagues. Furthermore, she submits that the dismissal was attended by procedural unfairness in that she was unaware of the allegations against her until only four days before her dismissal, and that there had been no prior discussion with her regarding concerns the Respondent may have held regarding her behaviour.

[27] The Respondent says in reply that it carried out the investigation and dismissal in a procedurally fair manner on which it took advice both from Craveable Brands HR staff and from an external HR consultant.

[28] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[29] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[30] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[31] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms E. Milano on her own behalf

Ms V. Cao for the Respondent

Hearing details:

2021
Melbourne
February15

Printed by authority of the Commonwealth Government Printer

<PR726662>

1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

2 Ibid.

 3   Exhibit A2, Termination of Employment letter, dated 7 September 2020

 4   Exhibit A7, Email thread between Applicant and Ms Tsidimas of Craveable Brands

 5   Ibid, Exhibit A8, Email thread between Ms Ngametua (on behalf of Applicant) and Respondent, Exhibit A9, Email thread between Applicant, Respondent and Craveable Brands

 6   Exhibit A16, Email from Respondent to Applicant, dated 14 December 2020

 7   Exhibit A13, Applicant payslips

 8   Exhibit A3, Email from Ms Ngametua to Craveable Brands, dated 22 September 2020

 9   Ibid

 10   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters[2018] FWCFB 901 at [39]