Ms Michelle Flanagan v Coaching College Pty Ltd T/A Coaching College

[2016] FWC 6898

[2016] FWC 6898

FAIR WORK COMMISSION

DECISION

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

s.366- Extension of time

Ms Michelle Flanagan
v
Coaching College Pty Ltd T/A Coaching College
(C2016/303)

COMMISSIONER RIORDAN SYDNEY, 19 OCTOBER 2016

Application to deal with contraventions involving dismissal, extension of time.

[1] This decision relates to an application by Ms Michelle Flanagan filed on 12 February 2016, claiming that Coaching College Pty Ltd, trading as Coaching College took adverse action against her by terminating her employment.

[2] Ms Flanagan claims that her application was made within the statutory time frame of 21 days because she was notified in writing of her termination on 22 January 2016.

[3] Coaching College claim that Ms Flanagan was a contractor who operated under an ABN and worked under a contract. Coaching College asserts that Ms Flanagan’s contract was terminated on 4 December 2015 as a result of Ms Flanagan abandoning her employment.

[4] A hearing was conducted by telephone on 29 August 2016 and 2 September 2016 to deal with the extension of time issue.

[5] Ms Flanagan represented herself in the hearings and was supported by Ms Heathwood. Mr Vizzone from VRT Lawyers was granted permission to appear for Coaching College in accordance with section 596 of the Fair Work Act, 2009 (the Act). Mr Marcus Archie and Ms Denise Archie, the owners of Coaching College also appeared.

Statutory Provisions

[6] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Fair Work Commission (FWC) is satisfied that there are “exceptional circumstances,” taking into account the following five criteria:

“(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.”

[7] The principles in relation to these types of matters are well established and were set out in a decision of a Full Bench of Fair Work Australia (as the Fair Work Commission was then called) in Nulty v Blue Star Group 1. In that matter the Full Bench held the following (at [13]) in relation to what constitutes an “exceptional circumstances”:

“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.”   

Consideration

Section 366(2)(a) Reason for the delay

[8] Ms Flanagan was originally employed for a period of six weeks on 16 December 2014 in a full time position. The employment offer included a further offer of on-going employment in the role of Business Development Manager, with a negotiated salary. A clause in the offer identifies a probationary period of 2 months. Ms Flanagan signed the employment offer on 22 December 2014.

[9] On 30 January 2015, Ms Flanagan agreed to a new offer and was promoted to Business Development/Marketing Manager.

[10] On 23 April 2015, Ms Flanagan signed another promotion offer for a full time role as Business Development Manager/Marketing Manager with a 6 month review on the contract. Relevantly the parties agreed to a 4 week notice period for either party to terminate the contract.

[11] During this time, Ms Flanagan fell pregnant. Due to complications associated with her pregnancy, Ms Flanagan received medical advice that she should seek specialised treatment and family support in Ireland. Ms Flanagan believed that this scenario was workable on the basis that all of her job was conducted by telephone.

[12] Unsurprisingly, it was difficult for both parties to co-ordinate Ms Flanagan’s normal attendance at meetings and her necessary involvement in the business due to the different time zones in which they were living. This scenario was further complicated by Ms Flanagan’s necessary and on-going medical treatment.

[13] I do not intend to repeat the detailed and regular communications between the parties but in mid November 2015, Coaching College became concerned about the working arrangement on the basis that Ms Flanagan was allegedly claiming that work had been performed when it had not.

[14] Having been unable to contact Ms Flanagan for a few days, on 23 November 2015, Coaching College sent an email to Ms Flanagan, saying that if they did not hear from her in a few hours, then they would take it that Ms Flanagan had abandoned her employment. Having not heard from Ms Flanagan, Coaching College locked Ms Flanagan out of the Coaching College’s email system.

[15] Coaching College sent Ms Flanagan a formal letter in the following terms:

“Michelle Flanagan

December 4^th 2015

Dear Michelle

As a result of your lack of contact or response to the company’s numerous reasonable requests for information and or contact from you since November 23^rd 2015. It is apparent that you have chosen to abandon your position/contract at Coaching College Pty Ltd ABN: 14 152 425 191 of 36/79 Boyce Road Maroubra.

Any personal items that you may have left at the organisation will be returned to you.

This email communication is to be regarded as formal notice of Coaching College Pty Ltd acceptance of your abandonment of your position/contract.

Signed
Denise Archie
CEO
Coaching College”

[16] Ms Flanagan responded on 6 December 2015 refuting that she had abandoned her employment:

“Dear Denise & Marcus
I refute your allegation that I abandoned my contract with Coaching College Pty Ltd.
The company locked me out of all of the company email accounts on 23 of Nov 2015 (Sydney time) which in effect prevented me from working on the company’s behalf thereafter.  

I look forward to your response in writing on this matter.
Regards
Michelle”

[17] Relevantly, Coaching College did not respond to this email until 25 December 2015.

[18] Numerous emails then flowed between the parties in relation to what had occurred during the employment relationship and what entitlements still had to be paid.

[19] Coaching College sent a further email on 22 January 2016 advising that they had terminated Ms Flanagan’s contract in November.

“Hello Michelle

We wanted to follow up on your last email.
We are also disappointed with situation of how our working relationship has ended.
The situation reached the stage where we could no longer continue the contract with you.

We did advise that we needed to access the company email set up for you to ensure we were not missing any important communications as you were uncontactable during an extended period of time. Hence our call to your family in order to get into contact with you.

We felt it appropriate to terminate the contract immediately at the end of the payment cycle.

If you could please coordinate a time with Denise to exchange the items (computer, phone and your external hard drive). It would be great have a conversation regarding your perspective and ours as we still have a number of questions regarding the work you had done in contacting people for business development, as well as the standard of work that we were receiving towards the end, prior to the termination of the contract.
If you are interested in a conversation before then please feel free to contact us as we are more than happy to speak with you to create a mutually comfortable resolution.
We wish you all the best in the future, and that everything works out for you with your health.

Kind regards
Marcus”

[20] I note that Ms Flanagan unfortunately miscarried her twins on the day that she was locked out of Coaching College’s computer system (November 23) and that she had been under consistent medical care. Ms Flanagan claims that she was on suicide watch in January and February due to her depression.

Section 366(2)(b) any action taken by the person to dispute the dismissal

[21] I am satisfied that Ms Flanagan, even though preoccupied following her unfortunate medical circumstances, made sufficient enquiry and complaint to Coaching College to challenge her termination by sending the email on 6 December 2015.

Section 366(2)(c) prejudice to the employer (including prejudice caused by the delay)

[22] It was held in Brody Hans v MTV Publishing, that prejudice to an employer will weigh against the granting of an extension of time. However, it is up to the employer to produce evidence that they would be prejudiced if an extension of time was granted.

[23] Coaching College did not produce any evidence or make any submission to indicate that they would suffer any prejudice if Ms Flanagan was granted an extension of time.

Section 366(2)(d) the merits of the application

[24] In Morphett v Pearcedale Egg Farm, 2 Deputy President Gostencnik said;

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission”.

[25] In Kornicki v Telstra-Network Technology Group 3 the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.” 4

[26] Detailed evidence on the merits of a case are rarely dealt with at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 5 for the purpose of determining whether to grant an extension of time to the applicant to lodge their Application.

[27] I adopt the reasoning of the Full Bench of the AIRC in Kornicki.

[28] I am satisfied that Ms Flanagan’s application has its own inherent difficulties but is not without merit.

Conclusion

[29] I have taken into account all of the submissions and information that has been provided by the parties.

[30] I do not accept the proposition that Coaching College had followed the appropriate processes or provided sufficient notice to be able to claim that Ms Flanagan had abandoned her employment. To provide a few hours notice to an employee/contractor on the other side of the world with an ultimatum to make contact, or else, is unfair and unrealistic. I note that Ms Flanagan did not challenge this email for two weeks, but accept the explanation that she had miscarried her twins on 23 November 2015.The heartache and emotional stress for any mother would be significant, let alone someone who had travelled to Ireland to seek specialised medical treatment.

[31] The temporary relocation of Ms Flanagan was a noble effort on behalf of Coaching College to allow Ms Flanagan to deal with her medical issues. I also note that, in hindsight, Ms Flanagan could have provided Coaching College with regular updates on her condition and treatment.

[32] Taking into account Ms Flanagan’s medical circumstances and the accompanying stress and emotional anxiety of her situation, viewed together, produces a scenario that satisfies the test in Nulty v Blue Star, ie, one which is out of the ordinary course, unusual, special or uncommon.

[33] I find that Ms Flanagan’s situation was an exceptional circumstance. Ms Flanagan’s application for an extension of time to lodge her application is granted.

[34] On the basis that I have granted Ms Flanagan with an extension of time to lodge her application, I have not dealt with the correspondence of 22 January 2016.

COMMISSIONER

 1 [2011] 203 IR 1

 2   [2015] FWC 8885

 3   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 4   Ibid.

 5   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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