Ms Janette Barnes v Australia Wide Trailer Rentals Pty Ltd
[2011] FWA 8261
•21 DECEMBER 2011
[2011] FWA 8261 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Janette Barnes
v
Australia Wide Trailer Rentals Pty Ltd
(U2011/9204)
COMMISSIONER CRIBB | MELBOURNE, 21 DECEMBER 2011 |
Application for unfair dismissal remedy – jurisdiction – extension of time.
[1] An application has been made by Ms Janette Barnes (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the Act). It is alleged that the termination of her employment by Australia Wide Trailer Rentals Pty Ltd (the respondent) was harsh, unjust or unreasonable. Ms Barnes is seeking a remedy in respect of her dismissal.
[2] The respondent lodged a jurisdictional objection to the application on 19 July 2011 on the grounds that it was lodged out of time due to the dismissal taking effect on 12 May 2011. It was agreed by the parties, at the hearing on Wednesday 14 September 2011, that the evidence and submissions would address both the date of termination and an application for an extension of time.
[3] Accordingly, this decision will deal first with the question of the date of Ms Barnes’ dismissal and then, if necessary, the application for an extension of time.
[4] The applicant was represented by Mr J Conroy, solicitor and the respondent by Mr C Campbell, solicitor.
[5] Evidence was given by Mr Conroy and Ms Barnes on behalf of the applicant and, for the respondent, by Mr Henderson and Mr Mayfair.
WITNESS EVIDENCE
RESPONDENT
Mr D Henderson
[6] Mr Henderson is Manager of the hire company and also one of the shareholders. 1 He provided a written statement2 and gave oral evidence.
[7] Mr Henderson recalled that Mr Playfair had advised him in early December 2010 that there were issues concerning Ms Barnes’ behaviour that needed addressing within the call centre. He stated that he had informed Mr Playfair that he had had previous informal discussions with Ms Barnes. It was recalled that Mr Playfair had recommended the formal appointment of a call centre Supervisor and clarification of Ms Barnes subsequent role. 3
[8] Mr Henderson confirmed that the meetings held with Ms Barnes during December 2010 were part of the disciplinary process. 4 This included a meeting on 16 December 2010 which had discussed Ms Barnes’ aggressive manner and the way she dealt with Mrs Lockerbie.5 A further meeting was held on 4 January 2011 during which Ms Barnes was told that there needed to be harmony in the call centre.6 A number of incidents were raised with Ms Barnes at a meeting on 3 February 2011. It was recalled that he made a decision that Ms Barnes was to be removed from the roster for five days.7
[9] Further issues were said to have arisen regarding Ms Barnes’ unsatisfactory performance and she was taken off the roster for a second period of 5 days ending 22 March 2011. 8 Mr Henderson recounted that, from the first meeting in December 2010, the company had explained to Ms Barnes that there were some areas of concern with her behaviour and that, as they did not seem to be getting anywhere, the company was giving her five days to go away and think about her behaviour.
[10] Following Ms Barnes’ return to work on 22 March 2011, further incidents were said to have occurred with respect to Ms Barnes. It was recalled that, within a couple of days of her return, Mr Henderson decided that, as Ms Barnes was a casual, she would not be rostered for any more hours as he had received reports that she was deliberately not doing tasks that she could do in the past. 9 Ms Barnes was then advised by Mr Playfair on 24 March 2011 that she would be immediately removed from the roster and a formal meeting was set up for 29 March 2011.10
[11] It was stated by Mr Henderson that Ms Barnes had requested a meeting with her independent witness but that that person could not come at the allotted time. The company had suggested that Ms Barnes obtain another independent witness. Mr Henderson recalled that Mr Conroy, on 14 March 2011 on this behalf of Ms Barnes, had requested a meeting which was arranged for 12 May 2011. 11 He confirmed that, in his e-mail response to Mr Conroy's request, he had stated that the company manages issues with a view to achieving a positive outcome and that he was not available until early May.12 It was agreed by Mr Henderson that he was hoping that Ms Barnes’ behaviour would improve. However, it was said not to have improved – it had affected her hours.13 Further, it was recalled by Mr Henderson that his view regarding the involvement of a lawyer was that it would only escalate the matter. He could not see any value in it but was happy to meet with Mr Conroy.14 Mr Conroy also confirmed with Mr Henderson each step in the exchange of e-mails between himself and Mr Henderson.15 Neither Ms Barnes nor her independent witness (Mr Conroy) attended the meeting on 29 March 2011. Mr Henderson agreed that he had received an e-mail the previous day from Mr Conroy advising that Ms Barnes would not be attending the meeting. He said that the words were clear at the hearing.16
Meeting on 12 May 2011
[12] At the beginning of the meeting on 12 May 2011, the company was said to have outlined the allegations to Mr Conroy and Ms Barnes and then adjourned. During the adjournment, he, Mr Robbins and Mr Playfair had a discussion. 17 On their return, Ms Barnes denied the allegations and said that she reserved the right to challenge the witnesses at a further date. He said that he was dumbfounded that Ms Barnes had denied what so many people had said.18 There was a further adjournment and Mr Playfair then told Ms Barnes that there was a shortage of work and that the company may consider her when the rosters were done again and would see if she was available but there were no guarantees.19 He said that “when we do the new roster if we require you, you may get a call”.20 He thought that this was a more polite manner in that, if Ms Barnes sought employment elsewhere, it would be a lot easier to say that there was not any work available rather than saying that there were all these incidents and the company did not seem to be able to address them.21
[13] Mr Henderson made it clear when giving his evidence that he had no intention of giving Ms Barnes any further hours as he had not given her any hours since March 2010. 22 Mr Henderson conceded that it was his view Ms Barnes would not be working for the company in the future in terms of being offered any more hours.23 Mr Henderson confirmed that these intentions were not verbalised at the meeting.24 It was his view that Mr Conroy's and Ms Barnes’ recollections of Mr Playfair’s statement at the end of the meeting were wrong.25
Form F3
[14] With respect to the employer’s response to the application, 26 Mr Henderson indicated that it had been prepared by consultants and that Mr Playfair had handled these arrangements. He confirmed that he was notified of this document and that it gave the reason for dismissal as shortage of work.27 He stated that there were two reasons for the applicant's dismissal - shortage of work and that the company had no intention of offering her any further work. Mr Henderson explained that, at that time of the year, call rates did drop after March.28 He confirmed that paragraph 3 of the form was correct and that Ms Barnes was advised at the meeting that, as winter was approaching and trade was slowing, call centre hours would be cut back and, as a result, there would be no further hours available for her and that she would be contacted if and when she may be required in the future.29
Form F4
[15] In terms of the employer's jurisdictional objection to the application, 30 it was confirmed by Mr Henderson that the company believed that the applicant's resignation letter (with the dates missing) was a ploy to get the date of the dismissal altered.31 He agreed that the separation certificate was sent to the wrong house number and that the applicant did not receive it. He indicated that the company found this out when Ms Barnes requested a second separation certificate.32
Separation certificates
[16] With regard to the two separation certificates, Mr Henderson confirmed that it was his signature at the bottom of both documents. In terms of the first separation certificate, dated 1 June 2011, he agreed that it cited “shortage of work” as the reason for the dismissal. It was confirmed that the second certificate, dated 14 July 2011, stated “shortage of work and other”. He explained that “other” referred to the applicant’s letter of resignation. 33 Mr Henderson indicated that “shortage of work” meant that all of the allocated hours within the call Centre had been taken up.34
[17] With respect to the rosters, it was Mr Henderson’s evidence that his understanding was that they were done a month out and then were added onto at the back end. At the point in time when Ms Barnes was told that the roster had been set in place and that the company was happy with it, it would have been done for at least the next month. 35 He said that the rosters changed in exceptional circumstances and were set in concrete to some extent.36 Mr Henderson stated that, beyond a certain number of weeks, the company was 95% aware and 5% unaware of what its requirements would be. He explained the process for this and indicated that, on the basis of the weekly reports, adjustments were made to the roster.37
[18] In terms of his witness statement, Mr Henderson outlined the process regarding its creation and asserted that, at that point in time, he could recall what was said at the meeting on 12 May 2011 and that that was what was in his statement. 38
[19] It was Mr Henderson’s belief that Ms Barnes had been terminated on 24 March 2011 because she had not been rostered on/offered any hours since then/had stopped working as she was a casual employee. His understanding was said to be that one did not have to terminate a casual employee. He said that Ms Barnes’ employment had ceased on the last day she had worked which was about 23 March 2011. 39
[20] Mr Henderson confirmed that, in late May 2011, he had discussed with Mr Playfair that Ms Barnes might be struggling for money. He stated that Ms Barnes had raised this issue with him in January 2011. 40
Mr Playfair
[21] Mr Playfair commenced with the Company on 29 November 2010 in a consultancy capacity with an initial brief of providing structure and process to the organisation. 41 He provided a written statement42 and gave oral evidence.
December 2010 - March 2011
[22] It was recounted that, between December 2010 and March 2011, Mr Playfair undertook the following:
- There was a meeting in December 2010 between Ms Barnes and Ms Lockerbie regarding certain continuing behavioural issues concerning Ms Barnes and also roster issues. 43
- A formal meeting was held on 3 February 2011 following issues regarding Ms Barnes’ performance which had arisen in January 2011 and early February 2011. A discussion record (a formal record of the meeting) was taken of the issues raised, Ms Barnes’ response and the company’s proposal regarding the way forward. Ms Barnes was told that it was counselling with a written warning and that any further breaches could lead to dismissal. 44 Ms Barnes was removed from the roster for five days from 3 February 2011 as part of the disciplinary process.45
- Further team interaction issues occurred in March 2011 and on 10 March 2011, Ms Barnes was taken off the roster until 22 March 2011 so that she could consider the company’s expectations regarding her behaviour and performance. 46 Ms Barnes was said to have been again told that any further incidents could result in dismissal.47
- Ms Barnes returned to work on 22 March 2011 and an incident occurred in the call centre on 23 March 2011. After obtaining some information about the incident, a meeting was held on 24 March 2011 as part of the formal performance management process. The issues were tabled by the company and Ms Barnes requested the attendance of Mr Conroy. The company agreed as long as he attended as a witness and not as a solicitor. Discussion about the performance issues was then deferred until a time when Mr Henderson and Mr Conroy could attend. 48
- As it was thought that a meeting had been set up for 29 March 2011, Ms Barnes was advised on 24 March 2011 that she would not be rostered on and that she would not be offered any further hours. 49
- Issues about timing arose and Ms Barnes and Mr Conroy did not attend on 29 March 2011. Eventually, there was a meeting on 12 May 2011. 50
- The meeting on 12 May 2011 was concluded on the basis that, as they were going into winter, the hours in the call centre had been cut back to reflect a slowing of trade. Further, the roster was now set but that the company would contact Ms Barnes when they needed her. 51 This meant that Ms Barnes was not on the roster and had not been since 24 March 2011 and that, if the company needed her, they would call her.52
- A separation certificate was prepared at Mr Henderson’s suggestion and signed by him which Mr Playfair sent to the wrong address. 53 He indicated that he had ticked “shortage of work” rather than “other” for the reasons he explained.54 He said that there were other reasons as well.55 He strongly rejected the suggestion that the company had waited more than 14 days before sending out the first separation certificate to ensure that Ms Barnes made a late application.56
- Mr Henderson accepted that Ms Barnes did not receive the first separation certificate. 57
- The company had received a telephone call from Centrelink on 13 July 2011 requesting a separation certificate. 58 It was confirmed that a second separation certificate was prepared dated 14 July 2011.59
Meeting on 12 May 2011
[23] With respect to his record of the meeting of 12 May 2011, it was Mr Playfair’s evidence that he had made handwritten notes in the breaks. He had then written up what had happened during the meeting a few hours later which was circulated by email at 2.06 pm. 60 He conceded that he had not made notes of everything that was said at the meeting.61 Mr Playfair recalled that he had written his concluding remarks during the last break and so the email was a fairly accurate record of what he had said.62 He rejected the proposition that he had used additional words or that they were not his exact words at the time.63 He denied that he had said he would send out rosters to Ms Barnes.64 Mr Playfair said that Mr Conroy had misinterpreted him when he said “the roster had been set” and thought something about the roster being sent.65 It was stated that the rosters were done fortnightly or thereabouts and that there were a number of variables which could cause them to change.66
[24] Mr Playfair confirmed that he had not used the termination word at the meeting because the company had decided to approach the matter on a light basis and not be inflammatory. This was said to have been for two reasons - Ms Barnes had reserved her right to challenge her dismissal and because of the aggressive start to the meeting. 67 He indicated that it was his expectation that Ms Barnes would not be offered any further work. However, he also said that, if all of the call centre staff collapsed, the company would probably be forced to take Ms Barnes back but that it would not be what the company wanted. Mr Playfair agreed that, when he made his concluding remarks, the company had no intention of offering Ms Barnes any further work.68 He agreed that the words that he used were other than that.69 He did not believe that what the company’s intentions were and what was said were opposite. Mr Playfair also did not think that it was reasonable for Ms Barnes to have left the meeting thinking that she might get some future work on the basis of what had occurred in the meeting.70
[25] With respect to the date of Ms Barnes’ dismissal, it was Mr Playfair’s evidence that her last shift was on 24 March 2011 but that he wrote on both separation certificates - 12 May 2011. He supposed that the dismissal date was 12 May 2011. 71
[26] Mr Playfair stated that, on 23 June 2011, the company had received Ms Barnes’ letter of resignation which was to be “effective immediately”. It was dated 15 June 2011. 72
[27] In terms of Ms Barnes’ casual status, Mr Playfair stated that Ms Barnes was a casual employee who had been receiving regular casual hours up until the disciplinary issues occurred. No hours had been offered to Ms Barnes from 24 March 2011. 73
APPLICANT
Mr Conroy
[28] Mr Conroy is a solicitor and is acting on behalf of Ms Barnes. 74 He provided a written statement75 and also gave oral evidence. He was cross examined by Mr Campbell.
[29] Mr Conroy outlined the circumstances whereby he had received instructions from Ms Barnes. 76 It was recalled that Ms Barnes had approached him about attending a forthcoming meeting with her as she felt intimidated and was concerned about how she had been treated at previous meetings.77 Mr Conroy stated that he was aware that there had been issues and that there may have been some meetings. He had rung Mr Henderson to see if there could be a meeting so that the issues could be discussed and sorted out. This had been in mid March but Mr Henderson was not going to be available until May.78 It was his view that the company would terminate Ms Barnes at the meeting on 12 May 2011.79
[30] Mr Conroy stated that the e-mails between himself and Mr Henderson 80 made it clear that Ms Barnes wanted somebody to attend with her at the meeting scheduled for 29 March 2011. When these timings could not be worked out, it was quite clearly stated that, in all of the circumstances, Ms Barnes would not be attending the meeting.81
[31] It was confirmed by Mr Conroy that there was a variance between the parties regarding what was said at the conclusion of the meeting on 12 May 2011. He confirmed his written statement that Mr Playfair had said that there were reduced work hours available at the call centre due to a downturn in work and that Ms Barnes would be provided with the new roster or words to that effect. 82 He accepted that Mr Henderson and Mr Playfair had said at the meeting, words to the effect that, we have cut back hours in the call centre which reflected a slowing of trade.83 He also indicated that Ms Barnes’ statement contained similar wording.84
[32] Mr Conroy stated that Ms Barnes was not informed at the meeting that she was dismissed. 85
Ms Barnes
[33] It was Ms Barnes’ evidence that she had been engaged as a casual with the company since 31 January 2009. 86 She said that her hours could vary from more than 40 hours a week to 20 hours if she was sick or had taken time off.87 She stated that, prior to being put off the roster in 2011, she could not recollect this happening before then. She confirmed that she was not given any hours for a five-day period in February 2011. In March 2011, it had been stated as a second five-day period but the rosters had been adjusted to make it a 12 day period.88 Ms Barnes recalled that, on 24 March 2011 when she had requested that the meeting be postponed to a time when her witness could be with her, Mr Henderson had taken her keys and told her that she would get no more work until they had the meeting. She confirmed that no further hours were offered to her during the period prior to the meeting on 12 May 2011.89
[34] Mr Barnes confirmed that she had advised Mr Conroy that she was not being offered any hours and that she was a casual employee. 90
[35] During the meeting on 12 May 2011, Ms Barnes recalled Mr Playfair saying that there was a downturn in the calls in the call centre and that if, and when there were hours, she would be contacted and would be sent rosters showing that there were no hours for her. She understood at the meeting that there were no hours for her. 91 Ms Barnes stated that she did not leave the meeting knowing that there would no hours ever offered to her. She said that it was “if and when”.92 She said that she was not informed that she had been dismissed.93
[36] In her written statement, Ms Barnes indicated that she did not receive any of the separation certificates as stated by the company. She said that both of the separation certificates were incorrectly addressed. She stated that she had contacted Centrelink after she had resigned to advise them of the change in her circumstances. It was her understanding that the company had sent Centrelink a separation certificate which indicated that she had resigned on 15 June 2011. 94
FINAL SUBMISSIONS
Applicant
[37] Mr Conroy submitted, on behalf of the applicant, that the effective date of dismissal has to be determined in a practical commonsense manner. He stated that the facts were that:
- The applicant was not dismissed from her employment at the meeting on 12 May 2011.
- The applicant did not receive any separation certificates
- The applicant resigned from her employment by a letter dated 15 June 2011.
- Her application for an unfair dismissal remedy was received by Fair Work Australia on 27 June 2011.
- The applicant did not become aware of the company's contention that she had been dismissed on 12 May 2011 until she received copies of the employer's response and objection form. 95
[38] It was argued, therefore, that Ms Barnes’ application was lodged within time.
[39] In the alternative, Mr Conroy contended that, if the Tribunal found that the applicant was dismissed on 12 May 2011, an extension of time should be granted. This was on the grounds that it could not be concluded that the application was without merit and that the company was not prejudiced by the time delay of six weeks between the meeting on 12 May 2011 and the filing of the application on 27 June 2011. 96
[40] Further, it was argued that, at the meeting on 12 May 2011, the company had told Ms Barnes one thing when they really meant something else. It was stated that she had relied on what the company had told her so that she had, therefore, a reasonable expectation of getting some work at some point in the future. Ms Barnes was also expecting that rosters would be sent to her. 97 With respect to the conflict in the evidence about what was said at the conclusion of the meeting Mr Conroy stated that his and his client’s evidence was that “rosters” were mentioned.98
[41] In Ms Barnes’ unfair dismissal application, it was stated that the applicant was forced to resign because the employer had failed to take all reasonable steps to ensure that she returned to work. As well, the company was said to have treated Ms Barnes’ employment as at an end by failing to offer her any further hours.
Respondent
[42] On behalf of the company, Mr Campbell stated that “...the law cannot be avoided”. 99 He submitted that Ms Barnes’ legal position as a casual must be examined. He argued that as a casual, Ms Barnes was not entitled to access the jurisdiction because, as from 24 March 2011, she was no longer an employee receiving regular and systematic hours with an ongoing expectation of continuance of those hours or employment. He said that Ms Barnes did not receive any hours from 24 March 2011. It was contended that, prior to that point, Ms Barnes was a casual employee who had a regular and systematic arrangement with an ongoing expectation of hours.100
[43] However, it was asserted that, in February and March 2011, Ms Barnes had been clearly warned that her casual status came with some difficulties in that, as part of the disciplinary process, she was removed from the roster for two periods of five days. 101 It was acknowledged that there were discussions about a meeting to discuss matters related to the disciplinary process. However, it was argued that the applicant should have accessed the unfair dismissal regime shortly after 24 March 2011 as, from that point, she was receiving no hours.102 It was stated that, from at least 24 March 2011, Ms Barnes no longer had a reasonable expectation of continuing employment by the company on a regular and systematic basis.103 In the alternative, if it was found that Ms Barnes had some expectation of ongoing employment on a regular and systematic basis because of the disciplinary process being undertaken, it was contended that she then should have filed an application within 14 days of 12 May 2011.104
[44] Mr Campbell submitted that Ms Barnes was getting regular and systematic hours with an ongoing expectation of those hours which ceased on 24 March 2011 and which was reconfirmed on 12 May 2011. He said that, at one of those points in the disciplinary process, Ms Barnes could no longer have had an expectation of ongoing work or of regular and systematic hours. This was because, at various points and particularly from 24 March 2011 onwards, no hours were offered to Ms Barnes. It was asserted that, at the point of either the first disciplinary period of five days, the second period of five days, the imposition of a third removal of hours and the taking of her keys on 24 March 2011, or as a result of the meeting of 12 May 2011, Ms Barnes should have known (or been advised) and that she was no longer a casual employee receiving regular and systematic hours with an expectation of continuing employment. 105
[45] It was the company's view that the dismissal took effect on 12 May 2011, which was substantiated by the first separation certificate, sent on 1 June 2011. Therefore, Ms Barnes’ application was well out of time. 106 It was conceded that the separation certificate was not received by Ms Barnes as it had been sent to the wrong address. Ms Barnes’ employment was said to have ended on or at an earlier time than 12 May 2011.107 It was contended that the separation certificate was only relevant in terms of confirmation of the company’s position that the situation in respect of Ms Barnes’ hours would remain the same - that is, no hours would be offered and they would be offered on an “if and when” basis in the future.
[46] Irrespective of what was said at the conclusion of the meeting on 12 May 2011, it was stated that the word “termination” was not used but that there was discussion about if and when hours might be offered in the future. 108
[47] The company submitted that, although the applicant may have resigned through her letter of 15 June 2011, it has no effect in any event given that the casual status of Ms Barnes (in terms of receiving regular and systematic employment with a reasonable expectation of continuing employment) had changed well before 15 June 2011. 109
[48] In terms of the applicant's contention that she was forced to resign because hours were no longer being offered to her, it was submitted that the resignation itself did not refer to hours not being offered to the employee. Secondly it was stated that the applicant had not been offered any hours since 24 March 2011. This had been confirmed during the meeting on 12 May 2011. The respondent argued that Ms Barnes had had no employment to resign from on 15 June 2011 as her casual status had changed due to the fact that hours had ceased to be offered, at least from 24 March 2011. 110
[49] With respect to the extension of time argument, Mr Campbell submitted that Ms Barnes was advised by a lawyer who had access to the law in that area. She had provided instructions to him that she was a casual employee and that she was not receiving any hours from 24 March 2011. It was argued that the disciplinary process that had been followed by the company since December 2010 was a very good one in terms of trying to deal with this particular employee. This meant, therefore, that Ms Barnes has no reasonable prospects of success in her unfair dismissal claim. 111
[50] It was submitted that it may be open to the Tribunal to find that, in this matter, the applicant and the company still had a “contract” but one where no hours were being offered pursuant to the contract on a casual basis. 112
CONSIDERATIONS AND CONCLUSIONS
[51] There are two issues (potentially) requiring determination by the Tribunal. The first one concerns the date on which the company terminated Ms Barnes’ employment. Depending on the outcome of this determination, it may be necessary for the Tribunal to decide whether or not to grant an extension of time.
[52] I will deal with the date of termination first.
Date of termination
[53] The majority of the evidence and documentation before me focuses on the question of the date of termination. It was the company’s contention that Ms Barnes’ dismissal took effect on 12 May 2011 which was confirmed by the separation certificate, dated 1 June 2011. The respondent also stated that, prior to 24 March 2011, Ms Barnes had been a casual employee with regular and systemic hours and an expectation of ongoing employment. However, it was argued that, from at least 24 March 2011, her employment status had changed due to the fact that she was not given any hours. Therefore, it was said that she no longer had an expectation of ongoing work and was working no hours rather than on a regular and systematic basis. Further, it was stated that, when Ms Barnes resigned by letter of 15 June 2011, she had no employment to resign from because her casual status had changed due to no hours having been offered to her from at least 24 March 2011.
[54] On the other hand, on behalf of Ms Barnes, it was submitted that Ms Barnes was not dismissed from her employment at the meeting on 12 May 2011 and that she did not subsequently receive a separation certificate. Also, it was contended that Ms Barnes was forced to resign from her employment by letter dated 15 June 2011 (constructive dismissal) because the company had failed to take all reasonable steps to ensure that she returned to work. The applicant’s evidence was that she did not leave the meeting on 12 May 2011 knowing that there would be no hours offered to her in the future. It was pointed out by Mr Conroy that the evidence had shown that, at the meeting on 12 May 2011, the company had said one thing but meant something else. It was submitted that the company had treated Ms Barnes’ employment to have been at an end by failing to offer her any further hours.
[55] It is common ground that Ms Barnes commenced employment with the company on 31 January 2009 as a casual employee. It was also agreed that, prior to the disciplinary process commencing, Ms Barnes’ hours were regular and systematic and she had an expectation of ongoing employment. In February 2011, Ms Barnes was removed from the roster for a period of five days as a disciplinary measure. Following this period, Ms Barnes appears to have been restored to the roster. A second period of removal from the roster occurred in March 2011 when Ms Barnes was removed for at least a further five days. It was Ms Barnes’ view that it was 12 days due to the roster having been changed.
[56] It is also common ground that Ms Barnes returned to work on 23 March 2011 and that she was removed from the roster and asked to return her keys on 24 March 2011. This was the result of an alleged work performance incident that occurred with respect to Ms Barnes on 23 March 2011. A disciplinary meeting was scheduled for 29 March 2011 to discuss the further incident. Ms Barnes’ independent witness was unable to attend the meeting on 29 March 2011 and the company was then not available until May 2011.
[57] The meeting to discuss the issues regarding Ms Barnes’ performance was finally held on 12 May 2011. It is undisputed that the company did not tell Ms Barnes during the meeting that she was terminated. On the basis of the evidence before me, it appears that, following discussion of the allegations about her performance and her rejection of them, the company told Ms Barnes, in effect, that there was a cut back in the hours in the call centre due to downturn in work, a slowing of trade; that the rosters were already set and that, if and when they needed her, they would contact her.
[58] It appears to me that the temporary removal of Ms Barnes from the roster on three occasions, was a disciplinary action taken in response to the issues regarding Ms Barnes’ work performance. Between the first and second occasion, Ms Barnes was restored to the roster. The third time Ms Barnes was removed from the roster, it was to be until the meeting on 29 March 2011 to discuss the latest complaints regarding her performance. The reason that she was removed from the roster for the length of time that she was on the third occasion, was due to Ms Barnes’ independent witness not being available on 29 March 2011 and then the company not being available until 12 May 2011. It is my view that these temporary removals of Ms Barnes from the roster were tantamount to suspensions and that they did not break the anticipation of ongoing work and did not change the status of Ms Barnes’ employment. Despite the gaps, which were the result of an on-going disciplinary process, Ms Barnes’ employment up until the meeting on 12 May 2011 was regular and systematic with a reasonable expectation of ongoing employment. Otherwise, why “suspend” Ms Barnes three times pending an investigation of the incident/complaint and a meeting to discuss same?
[59] Given this finding, the question now arises as to whether the date of the termination of Ms Barnes’ employment was 12 May 2011 (as the respondent contended) or 15 June 2011 when Ms Barnes resigned by letter of that date (constructive dismissal as argued by the applicant). Having considered all of the material before me carefully, I find that it is most probable that Ms Barnes’ employment as a casual was brought to an end on 12 May 2011. It was reasonably common ground that, during the meeting on 12 May 2011, the company told Ms Barnes, words to the effect that the hours in the call centre had been cut back due to slowing of trade, that the rosters had already been set and that, if and when the company needed her, they would contact her. It was undisputed that Ms Barnes was not specifically told that her employment was terminated. However, the evidence of Mr Henderson and Mr Playfair was very clear that, despite what was said at the 12 May 2012 meeting, the company had no intention of offering Ms Barnes any further work. The explanation from the company for the disparity between what the company told Ms Barnes and what they had decided to do was that they had wanted to let her down gently. The company’s decision to not offer Ms Barnes any hours in the future resulted in the employment of Ms Barnes, in effect, being brought to an end as an expectation of on-going work was unsustainable. Also, Ms Barnes was not restored to the roster as she had been on previous occasions, following the disciplinary meeting.
[60] Ms Barnes lodged her application on 27 June 2011. As the date of the termination of her employment was 12 May 2011, the application is out of time. Accordingly, I will now deal with the extension of time application.
Extension of time
[61] The relevant sections of the Act with respect to the granting of an application for an extension of time are section 394(2) and (3). These are as follows:
[62] Section 394(2) of the Act provides:
“(2) [Standard time limit] The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).”
[63] Section 394(3) provides:
(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(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.”
[64] I will deal with each of these factors in turn.
Reasons for the delay s.394(3)(a)
[65] It was submitted by the applicant that she was not dismissed during the meeting on 12 May 2011 and that she did not leave the meeting knowing that there would not be any hours offered to her in the future. Further, she had tendered her resignation on 15 June 2011 because she had not received any hours from the company.
[66] The respondent contended that Ms Barnes should have known or have been advised that, at the very latest on 12 May 2011, she was no longer a casual employee working on a regular and systematic basis with an expectation of on-going work. No hours had been offered to Ms Barnes since 24 March 2011 and her office keys were also taken back at that time.
[67] I have considered all of the submissions and find that the applicant has provided a reasonable explanation for the delay on the basis that Ms Barnes was not told that her employment was terminated on 12 May 2011. It was undisputed that Ms Barnes was not specifically told that she was dismissed at the meeting on 12 May 2011. She resigned on 15 June 2011 which on face value, would confirm Ms Barnes’ contention that she did not think she had been dismissed on 12 May 2011 and that she did not believe that she would not be given any hours in the future. As it was not made clear to Ms Barnes at the meeting on 12 May 2011, that she had been terminated, she lodged her application ‘within time’ following her resignation on 15 June 2011.
Aware of the dismissal - s.394(3)(b)
[68] As has been discussed above, Ms Barnes was not told directly or clearly that her employment was terminated at the meeting on 12 May 2011. Further, she did not receive the separation certificate and covering letter dated 1 June 2011 from the company.
[69] Therefore, I find that Ms Barnes first became aware of the dismissal after it had taken effect.
Any action taken - s.394(3)(c)
[70] It was submitted on behalf of Ms Barnes that she did not become aware that she had been dismissed at the meeting on 12 May 2011 until she received the Employer’s Response form (Form F3) and the Objection form (Form F4). Therefore, prior to lodging her application, Ms Barnes was unaware that she had been dismissed. Apart from tendering her resignation, there would not be many actions that the applicant could take to dispute her dismissal in a situation where she thought that she had resigned rather than been dismissed.
[71] Accordingly, given the circumstances of this matter, I find that it was not possible for Ms Barnes to take any action to dispute her dismissal as she was unaware that she had been dismissed.
Prejudice to the employer - s.394(3)(d)
[72] The respondent held the view that Ms Barnes should have filed an application within 14 days from when her casual hours no longer were regular, systematic and with an expectation of on going employment. This was said to be particularly so given that she had engaged a legal advisor in March 2011. Therefore, the application was described as particularly out of time.
[73] On the other hand, the applicant submitted that the respondent was not prejudiced as the application was filed about six weeks from the alleged dismissal date of 12 May 2011.
[74] I find that there is no prejudice to the respondent other than the usual prejudice which accompanies any granting of an extension of time.
Merits of the application - s.394(3)(e)
[75] It was submitted by the respondent that the application was without merit due to the robust disciplinary process that was followed with respect to Ms Barnes’ work performance deficiencies.
[76] The applicant contended that, on the material before the Tribunal, it could not be concluded that the application was without merit. The applicant denied the allegations regarding poor performance.
[77] Having considered all of the material me, as there is a conflict between the parties regarding the facts, it is not possible to say that the application is without merit.
Fairness as between the applicant and other persons in a similar position - s.394(3)(f)
[78] This factor is not relevant in this matter.
Are there exceptional circumstances s.394(3)
[79] The basis on which it is decided if the Tribunal’s discretion should be exercised to grant an extension of time is whether there are “exceptional circumstances” taking into account the factors considered in paragraphs 65 to 78 above.
[80] The term “exceptional circumstances” has been considered in a number of decisions of Fair Work Australia. A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd summarised various decisions which dealt with the meaning of “exceptional circumstances”. The Full Bench found that:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.” 113
[81] I respectfully adopt this approach.
[82] Taking account of all of the factors set out in s.394(3) of the Act, I find that there are “exceptional circumstances” such that I should exercise my discretion and grant an extension of time. The situation surrounding Ms Barnes’ dismissal from the company could be, in my view, described as “out of the ordinary course, unusual, special or uncommon”. To be unaware that one had been dismissed and to tender one’s resignation and to then lodge an application that was within time, based on the resignation, would seem to fit the description of “exceptional circumstances” set out by the Full Bench.
[83] Accordingly, Ms Barnes’ application for an extension of time is granted. The date of lodgement of the application is extended to 27 June 2011. An order 114 to this effect will be issued separately.
[84] The application will be referred for conciliation.
COMMISSIONER
1 Transcript PN 104
2 Exhibit R2
3 Ibid at paragraph 6
4 Transcript PN 127 - 135
5 Exhibit R2 at paragraph 7
6 Ibid at paragraph 10
7 Ibid at paragraph 12
8 Ibid at paragraph 13 and Transcript PN 137 - 139 and 144
9 Transcript PN 147 - 148, 376 - 379, 486, 490 and 607
10 Exhibit R2 at paragraphs 15 - 17
11 Transcript PN 15 - 153 and 169 - 170
12 Ibid PN 172 - 175 and 186 - 187, 193 and 200 - 204
13 Ibid PN 542 - 544
14 Ibid PN 548 - 556
15 Ibid PN 205 - 215
16 Ibid PN 214 - 220
17 Ibid PN 336 - 340
18 Ibid PN 328 - 332, 334 - 335 and Exhibit R2 at paragraph 28
19 Ibid PN 423 and 428
20 Ibid PN 156, 342, 353 - 355, 443, 447, 466, 470, 484 and 606
21 Ibid PN 152 - 156, 458 - 459, 462 - 463 and 613 and Exhibit R2 at paragraphs 28 - 29
22 Ibid PN 160 - 161, 347 - 348, 423, 457, 481 and 487
23 Ibid PN 146 - 151
24 Ibid PN 426 - 427, 429 and 464
25 Ibid PN 360
26 Form F3
27 Transcript PN 223 - 258
28 Ibid PN 259 - 268
29 Ibid PN 269 and 471
30 Form F4
31 Transcript PN 278 - 281
32 Ibid PN 270 and 282 - 285 and Exhibit R2 at paragraph 33
33 Ibid PN 296 - 316
34 Ibid PN 583
35 Ibid PN 380 - 389
36 Ibid PN 391 - 392 and 469
37 Ibid PN 482
38 Ibid PN 395 - 442 and 476 and 592 - 595
39 Ibid PN 492 - 515 and 609 - 610
40 Ibid PN 527 - 532
41 Ibid 656 - 657 and Exhibit R3 at paragraphs 2 - 3
42 Exhibit R3
43 Ibid at paragraph 15 and Transcript PN 660
44 Ibid
45 Exhibit R3 at paragraph 19
46 Ibid at paragraph 20 and Transcript PN 66
47 Ibid at paragraph 20
48 Ibid at paragraph 23 and Transcript PN 661
49 Ibid at paragraph 23
50 Ibid at paragraphs 26 - 27 and Transcript PN 661
51 Ibid at Attachment JP6 and Ibid PN 664
52 Transcript PN 665 - 666
53 Ibid PN 667, 744 and 760
54 Ibid PN 669
55 Ibid PN 754 - 759
56 Ibid PN 760 - 764
57 Ibid PN 667, 765 and 769
58 Ibid PN 670 and 770
59 Ibid PN 771 - 772
60 Ibid PN 672 - 676
61 Ibid PN 681
62 Ibid PN 682 - 692 and Exhibit R3 at paragraph 33 and 35
63 Ibid PN 696 - 708
64 Ibid PN 776
65 Ibid PN 779 - 780
66 Ibid PN 781 - 782, 789 and 791
67 Ibid PN 711 - 719 and Exhibit R3 at paragraph 32
68 Ibid PN 722 - 724
69 Ibid PN 735
70 Ibid PN 736 - 738 and 741 - 743
71 Ibid PN 725 - 734
72 Exhibit R3 at paragraph 37
73 Ibid at paragraph 38
74 Exhibit A1 at paragraph 1
75 Exhibit A1
76 Transcript PN 838 - 839
77 Ibid PN 846 - 847 and 850
78 Ibid PN 840 - 844 and 852
79 Ibid PN 851
80 Exhibit A1 at paragraphs 1-13 and Attachments A - L
81 Transcript PN 856 - 858 and Exhibit A2 at Attachment H
82 Ibid PN 868 - 870 and Exhibit A1 at paragraph 15
83 Ibid PN 876 and Exhibit A1 at paragraph 15
84 Ibid PN 879 - 881
85 Exhibit A1 at paragraph 16
86 Exhibit A2 at paragraph 2
87 Transcript PN 916 - 918
88 Ibid PN 925 - 927
89 Ibid PN 928 - 930
90 Ibid PN 935 - 936
91 Ibid PN 944 - 952 and Exhibit A2 at paragraph 5
92 Transcript PN 953 - 954
93 Exhibit A2 at paragraph 6
94 Exhibit A3 at paragraphs 7-9
95 Ibid at page 1
96 Ibid at pages 1 - 2 and Transcript PN 982
97 Transcript PN 982 - 983
98 Ibid PN 983
99 Ibid PN 987
100 Ibid PN 989 - 990 and Exhibit R1 at paragraph 11
101 Ibid PN 989 - 990
102 Ibid PN 991
103 Exhibit R1 at paragraphs 22 - 24
104 Ibid at paragraph 24
105 Ibid at paragraphs 14 - 15 and 17
106 Transcript PN 993
107 Exhibit R1 at paragraphs 2 - 4
108 Ibid at paragraph 7
109 Ibid at paragraph 9
110 Ibid at paragraphs 25 - 27
111 Transcript PN 994 and Exhibit R2 at paragraph 29
112 Exhibit R1 at paragraph 30
113 [2011] FWAFB 975 at paragraph 13
114 PR518227
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