Ms Macy Banks v Sharkra Medispa
[2019] FWC 2693
•29 APRIL 2019
| [2019] FWC 2693 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Macy Banks
v
Sharkra Medispa
(C2019/1278)
DEPUTY PRESIDENT CROSS | SYDNEY, 29 APRIL 2019 |
Application to deal with a general protections dispute involving dismissal; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to callow a further period within which application may be made should be exercised; extension of time refused.
[1] On 27 February, 2019, Ms Macy Banks (the ‘Applicant’) lodged an application (the ‘Application’) pursuant to s.365 of the Fair Work Act 2009 (the ‘Act’). The Applicant is seventeen (17) years of age and the employment was in Hobart, Tasmania 1. The Applicant said that she had commenced employment with Sharkra Medi Spa (ABN 62 109 417 2630)2 (the ‘Respondent’) on 11 August 2018 and her employment had been terminated by the Respondent on 31 January, 2019. 3 While, as noted, the application was lodged on Wednesday 27 February, 2019, it was signed and dated 7 February, 2019.
[2] General Protections applications involving dismissal must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the ‘Commission’) may allow. As the dismissal took effect on 31 January, 2019, an application for a remedy should have been lodged by no later than Thursday 21 February, 2019. The application was therefore lodged outside of the time prescribed and was, in effect, lodged six (6) days after the last day on which such an application could have been made.
[3] On 15 March, 2019, I convened a Directions Hearing to outline the manner in which the Applicant’s Application to be allowed an additional period within which to lodge her Application would be determined. By consent, the Applicant and the Respondent agreed to a timetable for the filing of Outlines of Submission addressing the Application, together with any witness statements and other documentary material upon which each party intended to rely. The Applicant and the Respondent also agreed that the Application would be determined upon the materials filed. In the Directions Hearing, the Applicant and the Respondent were specifically directed to the five (5) factors that must be taken into account pursuant to paragraphs (a) to (e) of sub-section 366(2) of the Act, as outlined below.
[4] I have determined that the Applicant should be allowed a further period within which to lodge her application. These are the reasons for that decision.
[5] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are contained in s.366(2) of the Act:
“366 Time for application
…
(2) The FWC may allow a further period if the FWC 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.”
[6] It is clear from the structure of s.366(2) that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
[7] 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 or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act that there are exceptional circumstances.
The Submissions of the Parties
The Applicant’s Case
[8] The totality of the Submission and materials filed by the Applicant at first instance was an email that stated:
‘Thank you for your time on March 15, 2019.
The reason my application was submitted late was due to the fact I was scared.
I had just been fired and my confidence knocked down. I was and am still concerned what ramifications it will have on me gaining future employment within the beauty industry after lodging this complaint.
I had the application ready to post but started having panic attacks thinking what may happen.
After talking it through with friends and family I came to the decision I needed to lodge a complaint. What happened to me wasn’t right and I don’t want it to happen to anyone else. I need to make a stand.’
The Respondent’s Case
[9] The Respondent did not prepare an Outline of Submissions, though it did file statements from:
(a) Ms Chiara Sianski, Salon Coordinator of the Respondent, that went to alleged performance deficiencies of the Applicant; and
(b) Ms Eliza Giles, Nail Technician of the Respondent, who was said to be a ‘character witness’ for Ms Tanya Ahmed, the Principal of the Respondent.
[10] The Respondent additionally filed on the Application the following documents:
(i) Letter of Termination;
(ii) Signed Employment Contract, dated 8 August 2018;
(iii) Letter of Offer, dated 8 August 2018;
(iv) Certificate of Completion for Sharkra Career Pathway Program; and
(v) Notice of Termination and Redundancy Pay Fact Sheet prepared by the Fair Work Ombudsman.
The Applicant’s Reply
[11] In reply, the Applicant filed an email that annexed various text messages with Ms Sianski from 12 and 21 January, 2019, which stated:
‘Wednesday April 3, 2019
Dear Deputy President
RE: C2019/1278 - Banks v Sharkra
In reply to the witness statement provided by Chiara, I’m in complete shock.
If poor customer service skills were brought to the Salon Coordinators attention why was this never discussed with me.
I was never advised the (sic) I was not following through with Saturday tasks or that I had been abrupt and unhelpful to clients.
One occasion where I didn’t complete all tasks was when Tanya asked me to move all of her appointments as she was travelling overseas in a few days. I contacted Chiara via messenger to advise her of the task that wasn’t finished. (Evidence attached).
If there was ever a time I was unsure of a procedure I would always ask a therapist.
In fact on January 12, I contacted Chiara (as all others therapists were busy) asking how I go about sending all booked appointments via email to a client. (Evidence attached)
Later that day I was advised by Tanya not to contact Chiara on her day off and I need to ask someone else in the salon.
I would never give out information unless I checked with a qualified therapist.
I always put in 100% when I was working for Sharkra. I worked a 7hr shift and in that time was never given a lunch break and wasn’t paid to attend meetings.
There was never an issue at Sharkra until the day I advised Tanya I couldn’t wear make up due to my skin issues. If there was an issue with my work ethic why wasn’t this mentioned at the time Tanya asked me to wear make up on the Saturday I was due to work.
Thank you
Macy Banks’
[12] The only other document filed by the Applicant in reply was an email from her mother, Melissa Banks, which served as a statement regarding what she observed as a client of the Respondent.
Consideration
[13] I will turn then to the particular matters to which regard must be had.
(a) Reason for the delay
[14] The reason for the delay in lodging the application was that the Applicant was scared of the effect that making an Application would have on her gaining future employment within the beauty industry. The Applicant does not submit that she lacked knowledge of the twenty-one (21) day limitation period.
[15] The Applicant’s fears would seem to have been held from the time of signing her Application on 7 February, 2019, until shortly before the Application was lodged on Wednesday 27 February, 2019. Those fears were resolved after discussions with friends and family 4.
[16] That the Applicant held the concern regarding the effect that making an application would have on her gaining future employment within the beauty industry is unremarkable, and if anything quite perceptive for someone of her age. Unfortunately, a former employee asserting their right to contest their dismissal can be perceived negatively by prospective employers. General Protections applications, and for that matter, Unfair Dismissal applications, are routinely settled on non-monetary terms that are designed to minimise the impact that termination, and subsequent contested applications, may have on future employment prospects. Such terms often involve agreed statements of service, replacing ‘termination’ with ‘resignation’ as the reason for cessation of employment, and non-disparagement undertakings.
[17] I note that in the matter of The Applicant v Origin Energy 5, Hamberger SDP considered one of four reasons for delay being:
‘Finally, the applicant says that he was concerned that once it became known within the industry in which he worked that he was taking legal proceedings against his former employer this might adversely affect his employment prospects. He therefore thought it best to try and obtain a new job before pursuing the matter’. 6
[18] Hamberger SDP found that no exceptional circumstances existed, and in relation to the above submission concluded:
‘Nor do I find his fears about any potential damage to his employment prospects from lodging an application prior to obtaining a new job a convincing explanation for his delay. To the extent that such an argument could ever be used to explain a delay in making an application (and I am not sure that it could) there was nothing special about the applicant’s situation in this regard.’ 7
[19] The reason for the delay in lodging an Application is one of the factors that must be taken into account in determining whether exceptional circumstances exist. The absence of an explanation for any part of the delay will usually weigh against an Applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the Applicant’s favour, though it is ultimately a question of degree and insight.
[20] I find the Applicant’s explanation for the delay to be credible and acceptable. As noted, the Applicant is only seventeen (17) years old and at the start of her working life. Her fears of the effect that making an Application would have on her gaining future employment within the beauty industry, presumably in Hobart, were understandable. This weighs in the Applicant’s favour.
(b) Action taken by the person to dispute the dismissal
[21] The Applicant took no steps to dispute her dismissal before making her application. No weight can be given to this consideration.
(c) Prejudice to the employer
[22] Neither the Applicant nor the Respondent made any submission, despite being directed to it as a consideration, regarding the Respondent being prejudiced by the Application being filed late. No weight can be given to this consideration.
(d) Merits of the application
[23] Again, neither the Applicant nor the Respondent made any submission, despite being directed to it as a consideration, regarding merits. The Applicant submits that she was dismissed in contravention of s.351 of the Act:
‘Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’
[24] The Applicant outlined in her Application that the Respondent dismissed her because she could not wear make-up due to a medical condition. That medical condition was not the subject of any medical evidence, though in text messages between the Applicant and Ms Ahmed, the Principal of the Respondent, on 31 January, 2019, at 10.32am, the Applicant refers to “medication [she was] on” and that [she had] been prescribed to use doxycycline, Estelle pill (for acne), epiduo forte gel, benzac”. 8 The penultimate text message from Ms Ahmed stated, “Hey Mace. I’m not upset or cranky and I completely understand. It’s just hard when the business is about skin that’s all x”.
[25] The Applicant’s next interaction with the Respondent was with “another receptionist” 9 Nicole Davie at 8.17pm on 31 January, 2019. There occurred at that time a text exchange in which Ms Davie attempted to arrange a meeting with the Applicant for the following day, and a subsequent telephone call in which the Applicant was advised that Ms Ahmed had decided to “let her go” as Shakra was expanding and in the role of receptionist “They were needing someone more mature and someone who is available a lot more”.
[26] The Respondent makes no submission as to the Applicant’s case, but it is curious that the Principal of the Respondent would talk in the morning to the Applicant anticipating continued employment, but by the evening the Applicant be deemed to be not suitable for employment with the Respondent.
[27] The Respondent subsequently provided the Applicant with a letter terminating her employment dated 31 January, 2019, apparently after such letter was requested by the Applicant shortly after she was terminated on same date. That letter provided:
‘Thursday 31st January, 2019
Re: Advice of employment termination
Dear Macy,
It is with regret that I am writing to inform you of your termination of employment at Sharkra Medi Spa, effective Thursday 31st January, 2019.
As discussed, the role of Reception is evolving with Sharkra’s business model, and subsequently Sharkra is not the right fit for you at this time. Several instances have occurred that require further development and experience for improvement:
• Communication skills with clients regarding service advice and treatment options.
• Unfortunately procedure and policy were not always followed, even when clear written instruction was provided.
• Tasks which were agreed upon within the job description were not accomplished within a shift, including basic housekeeping duties, administrative tasks and data entry.’
With additional training, support and guidance I believe you have a bright and outstanding future in any industry you chooses (sic) to pursue. You have also proven to be:
• A punctual and respectful employee.
• Able to follow most instructions and procedures without supervision.
• Someone who works well in a team environment.
• A friendly young lady.
I commend you on your participation in the Career Pathway Program at Sharkra, and wish you all the best for your bright future.
Yours sincerely,
Tanya Ahmed,
Director
Sharkra Media Spa.’
[28] The Respondent made no submission regarding the merits of the Applicant’s Application, and due to the timing of its Out of Time Jurisdictional Objection, has not filed a Form F8A responding to the assertions contained in the Application.
[29] This is a General Protections claim. In order to maintain such a claim, the Applicant must show that adverse action was taken. There is no dispute that adverse action in the form of dismissal has been taken by the Respondent.
[30] It is also clear that on the morning of the day she was dismissed, the Applicant identified a medical condition that precluded her with complying with Ms Ahmed’s request that she wear make-up. The adverse action occurred later that day.
[31] In these circumstances, it cannot be said the Application is without merit. It seems to me that there will be little difficulty in the Applicant establishing the elements of the contravention that she is required to establish. In these circumstances, question of the merits of the Application weigh in favour of the Applicant.
(e) Fairness as between the person and another persons in a like position
[32] Neither party made any material submission on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case. Consequently, this matter is a neutral consideration in the present circumstances.
Conclusion
[33] As is evident from the analysis above, while the matter is finely balanced, the matters that were the subject of submission, consideration and weight, being acceptable reason for delay and the merits of the application, weigh in favour of a conclusion there are exceptional circumstances. None of the factors weigh against such a conclusion.
[34] I am persuaded therefore that there are exceptional circumstances. The Respondent did not raise any issue which might persuade me not to exercise my discretion, notwithstanding that I have concluded there are exceptional circumstances. Nor am I aware of any persuasive discretionary consideration which would warrant that conclusion.
[35] I therefore propose to allow the Applicant further period within which to lodge his application. The application may therefore be lodged by 27 February, 2019.
[36] The application will be progressed by way of a conference at a time and date to be advised.
DEPUTY PRESIDENT
Appearances:
Ms Macy Banks, Applicant
Ms Tanya Ahmed, for the Respondent
Final written submissions:
For the Applicant: 22 March 2019; 5 April 2019
For the Respondent: 29 March 2019
Printed by authority of the Commonwealth Government Printer
<PR707204>
1 Tax File Number Declaration dated 10 August, 2018.
2 Tax File Number Declaration dated 10 August, 2018.
3 Applicant’s Form F8 – General Protections Application Involving Dismissal filed 27 February, 2019.
4 Applicant’s Submission filed 22 March, 2019.
5 [2010] FWA 3181
6 At [11].
7 At [17].
8 Annexures to Form 8A.
9 Annexures to Form 8A.
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