Ms Karen McBride v The Trustee for McAlpine Unit Trust
[2023] FWC 2553
•4 OCTOBER 2023
| [2023] FWC 2553 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Karen McBride
v
The Trustee For McAlpine Unit Trust
(C2023/2776)
| COMMISSIONER PERICA | MELBOURNE, 4 OCTOBER 2023 |
Application to deal with contraventions involving dismissal
On 15 May 2023, Ms. Karen McBride (the Applicant) made an application to the Fair Work Commission under s 365 of the Fair Work Act2009 (Cth) (the Act) alleging she was dismissed from her employment with The Trustee for McAlpine Unit Trust (the Respondent) in contravention of Part 3-1 of the Act.
The Respondent alleges in its Form F8A – Response to General Protections Application two jurisdictional issues; that the application was not lodged within 21 days as required by s 366(1) of the Act and that the Applicant was not dismissed.
The Commission’s powers to deal with a dismissal dispute under s 368 of the Act include mediation or conciliation. If all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, it then issues a certificate allowing an Applicant to take its claim to a Court. However, the Commission can only exercise these powers after determining any jurisdictional issues, as held by the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford.[1]
Accordingly, before dealing with the dispute, I must be satisfied that the application was not made out of time and that the Applicant was dismissed.
Procedural history
On 16 June 2023, I issued directions for procedural steps up to the hearing of the application, requiring the Applicant to file material by 30 June 2023.
On 1 July 2023, the Applicant informed my Chambers by email that on 29 June 2023, she had a seizure while driving and was subsequently diagnosed with a severe health condition.
On 11 July 2023, I issued further directions requiring the Applicant to file material by 1 August 2023.
On 3 August 2023, my Chambers contacted the Applicant by telephone to inform her that the matter would be listed for case management conference. The Applicant noted her memory had been affected by her condition.
On 7 August 2023, at the case management conference, the parties agreed that the hearing of the application would be made by oral submissions and evidence.
On 18 August 2023, the matter was heard by way of determinative conference in relation to the jurisdictional issues raised by the Respondent and was attended by Mr. Darcy McAlpine on its behalf.
On 24 August 2023, the determinative conference continued following the Respondent’s filing of further material.
Background
The Respondent operates a dairy which employs workers to facilitate and oversee the milking of cows.
The Applicant began her employment with the Respondent on a casual basis in May of 2022. Later that year, the Applicant’s mode of employment was changed to a permanent part-time basis. It was the Applicant’s evidence this occurred in April, while the Respondent claimed this occurred in July. The exact date is immaterial.
The Applicant’s evidence was, in December 2022, she was terminated from her permanent part-time employment for asking for overtime pay she believed she was owed. She lists the date of 8 December 2022 in her Form F8 application without specifically ascribing it to this event.
The Respondent tendered text message conversations with the Applicant between 8 December to 15 December 2022 into evidence. In those texts the Applicant provided calculations of how much she believed she ought to have been paid. The conversation continued as a negotiation of the Applicant’s rate of pay.
Separate to the text messages, it was the Respondent’s evidence that he offered to convert the Applicant back to casual employment to accommodate a pay increase as he could not afford to give her a pay rise as a permanent part time employee.
The text messages show on 15 December 2022 pictures of a handwritten document signed by both parties confirming the Applicant had accepted a casual employment offer. This was preceded by a message from the Applicant stating, “I will take you up on (sic) casual offer”. In her oral evidence, the Applicant confirmed she has signed this document.
In her oral evidence, the Applicant confirmed the accuracy of the text messages. However, she raised that the Respondent had withheld her pay on 15 December 2022 during this negotiation on the basis that the Respondent had indicated at the outset of her employment that she would be paid on Thursdays but had instead been regularly paid on Fridays. She highlighted that she had been paid the day after signing the contract on 15 December 2022.
The Respondent’s evidence was that as the signing occurred on 15 December 2022, a Thursday, the Applicant’s payment the next day was according to the normal pay cycle rather than any action taken by the Respondent to delay payment.
The Applicant alleges on the alternative that she was dismissed on 13 April 2023, which is disputed by the Respondent.
The Applicant’s submissions on the April 2023 dismissal
The Applicant alleged in her Form F8 application that a dismissal occurred on 13 April 2023, but also did not contest the Respondent’s dating of the event as 11 April 2023.
In the application form, she describes that after giving one month’s notice on 1 March 2023, the Respondent subsequently on 12 March 2023 stated that “he had rented [the Applicant] a house for 2 years”.
Later, in April 2023, she encountered two workers at her workplace who told her they were “living in [the Applicant’s] house and taking [her] job”. The Applicant viewed this as a dismissal and “walked out”.
The Applicant filed a text message she later received from Mr. McAlpine, which read:
“Apologies about today I fucked up the schedule you should not have had to find out that way.
I was planning to talk to you in the morning.
I wish you all the best take care.”
The Applicant’s interpretation of this message is that she should not have discovered that the house had been rented to someone else in the manner she did. She took this to mean her employment was being terminated. The Applicant stated in evidence: “I reckon it was done deliberately, ‘cause he knew I would have walked out”.
The Respondent’s submissions on the April 2023 dismissal
The Respondent tendered a timeline of events into evidence.[2] In an entry on the timeline marked “12/03/22” (this is clearly a typographical error and should have referred to 12 March 2023):
“After the AM milking myself and Karen were having a conversation around our search for her replacement and I mentioned I’d rented a house in town for 12 months for whoever our next milker was because I was looking to attract someone from out of town. She showed some interest in wanting to stay so I sent her the address, I said to Karen my brother and I hadn’t decide on a deal or anything for the new position. But will do a new contract if we were to consider her for the role. That is where that was left there was never a contract presented to her or keys given.”[3]
The timeline provides the following for the event labelled 11 April 2023:
“Karen walked out on her role after showing up to work and running into the milker I was training to join our team. At no point was Karen McBride sacked, she abandoned her casual role.”[4]
It was Mr. McAlpine’s evidence that the Applicant also made an unflattering remark about himself and that “she wouldn’t be coming back”. This was not contested by the Applicant.
Mr. McAlpine also reiterated in evidence that “at no stage was there anything suggesting [the Applicant] was terminated”.
In relation to the subsequent text message, Mr. McAlpine’s evidence was that “you should not have had to find out that way” meant that the Applicant should not have had to find out that there were new trainees indirectly, rather than through Mr. McAlpine himself.
When must an application for the Commission to deal with a dispute be made?
Before dealing with the dispute, I must be satisfied that the application was not made out of time.
Section 366(1) of the Act provides:
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
When did the dismissal take effect?
The parties are in dispute about when the dismissal took effect.
The Applicant alleges two dates on which she was dismissed. The first is 8 December 2022. The Respondent did not directly address the date of the first alleged dismissal but gave 15 December 2022 as the date that the Applicant’s casual employment contract was signed.
There is a serious question whether the variation of the employment contract on 15 December 2022 amounted to a dismissal. Nevertheless, for the purpose of determining whether the application was made out of time, I find the “dismissal” occurred on 15 December 2022.
The Applicant alleges in the alternative that she was dismissed on 13 April 2023. The Respondent’s timeline of events filed into evidence gives the date as 11 April 2023. When the dates of the timeline were posed to the Applicant and whether she disputed them, she stated that she did not.
Once again, there is a serious question whether what occurred on 11 April 2023 was a dismissal at the initiative of the employer. Nevertheless, for these purposes, I find the date her employment ceased was on 11 April 2023.
Was the application made within 21 days after the dismissal took effect?
The application was made on 15 May 2023.
The application was made 151 days after 15 December 2022 and 34 days after 11 April 2023. Given the 21-day period, the application is 130 days late from the date of the first alleged dismissal and 13 days late from the date of the second alleged dismissal.
The Commission may allow for a further period under s 366(2) if it is satisfied 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.
A collective assessment of all the criteria is required to determine whether there are exceptional circumstances to allow for a further period.[5]
Reason for the delay
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[7]
It was the Applicant’s evidence that her seeking legal advice was the reason for her delay, as “it took a while to get a hold of [JobWatch]”. This is also reflected in her Form F8 application where she notes that she did not know of the option of filing a s 365 application until she received advice.
Consideration
The Full Bench in Nulty v Blue Star Group Pty Ltd[8](Nulty) held that:
“[13] … 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…
Seeking legal advice is not “out of the ordinary course, or unusual, or special, or uncommon”.
It may be inferred the Applicant was unaware of the 21-day time limit until she sought legal advice. Even if I accept that she was not aware of the time limit, the Full Bench in Nulty held that “mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance”.[9]
This factor weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
There is no evidence the Applicant disputed either alleged dismissal. There are text messages in evidence where she disputed her alleged underpayment claim but that is not in issue in these proceedings which instead concerns the Applicant’s dismissal.
Rather than contest her alleged dismissal on 15 December 2022 which she alleges occurred because of the change in her employment from permanent part time to casual, the evidence is that she kept working for the Applicant in the changed capacity as a casual employee.
In relation to the 11 April 2023 alleged dismissal, her Form F8 confirms she took no action because she did not know the option of bringing a claim under s 365 “was available.” The Applicant adduced no oral evidence of any action taken after 11 April 2023 to dispute her dismissal.
This factor weighs against a finding of exceptional circumstances.
Prejudice
The Respondent did not argue it would be prejudiced by the delay in bringing the proceeding either from the 15 December 2022 alleged dismissal or the 11 April 2023 alleged dismissal.
Merits
In Kornicki v Telstra-Network Technology Group,[10] the Commission considered the principles applicable to the exercise of the discretion to extend time under s 170CE (8) of the Workplace Relations Act 1996 (Cth). This case has routinely cited as a guide to the merit assessment for the purposes of an extension of time under s 366. In Kornicki, the Commission held:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
Consideration
The 15 December 2022 alleged dismissal
There is a serious question whether the variation of the Applicant’s employment contract from permanent part time to casual amounted to a termination of employment at the initiative of the employer. The Applicant conceded she signed the document, an image of which was before me in the text messages tendered by the Respondent.
The Applicant argued she signed this document under duress because the Respondent had “withheld her pay.” This was contradicted by the evidence of the Respondent who gave evidence the Applicant was paid on the normal pay cycle.
The 11 April 2023 alleged dismissal
The evidence of the Applicant was she simply walked out from work on 13 April 2023. There is no evidence the Respondent took any action to indicate she had been dismissed. The evidence of Mr. McAlpine was “at no stage was there anything suggesting [the Applicant] was terminated”.
The explanation the Applicant gave for why the 11 April 2023 cessation of employment constituted a dismissal was she encountered two workers at her workplace who told her they were “living in [the Applicant’s] house and taking [her] job”. Her evidence was that the employment of two trainees and the offering by the Respondent of the house "was done deliberately, ‘cause (sic) he knew I would have walked out”.
On the limited evidence before me it appears the variation of the Applicant’s contract from permanent part time to casual in 15 December 2022 was consensual and therefore was not a termination of her employment. The evidence suggests the cessation of employment on 11 April 2023 occurred at her initiative because she walked out, as opposed to being dismissed at her employer’s initiative. There is serious doubt in both cases whether what occurred was a dismissal as required by s 365 of the Act.
My assessment of the merits of this case count against a finding of exceptional circumstances.
Fairness with others in a similar position
Neither party raised any issues in respect of this matter, and I am satisfied it is a neutral factor in this case.
Conclusion
I have considered each of the criteria set out in s 366(2). In this case, three of the five criteria are factors against a finding of exceptional circumstances, and two are neutral. None of these criteria, either individually or collectively, point towards there being any exceptional circumstances enlivening my power to grant an extension of time.
I am therefore not satisfied there are exceptional circumstances which justify an extension of time in this case. The application is dismissed. An order[11] to this effect is issued in conjunction with the publication of this decision.
As I have decided not to grant an extension of time under s 366(1)(b), it is not necessary for me to reach a definitive view of the ‘no dismissal’ objection.
The Applicant should be aware that none of these findings consider the merit or otherwise in her alleged underpayment claims which she is open to pursue. I wish her well with her health issues.
COMMISSIONER
Appearances:
Ms. Karen McBride, the Applicant, appeared for herself.
Mr. Darcy McAlpine appeared for the Respondent.
Hearing details:
Friday 18 August 2023 and Thursday 24 August 2023 by Microsoft Teams
[1] [2020] FCAFC 152.
[2] Exhibit R1.
[3] Ibid.
[4] Ibid.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Ibid.
[7] Ibid [41].
[8] [2011] FWAFB 975
[9] Ibid [14].
[10] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[11] PR766830
Printed by authority of the Commonwealth Government Printer
<PR766829>
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