Ms Michelle Hess v Sensis Yellow Pages T/A Sensis

[2015] FWC 1198

[2015] FWC 1198

FAIR WORK COMMISSION

DECISION

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

Ms Michelle Hess
v
Sensis Yellow Pages T/A Sensis
(U2014/16763)

COMMISSIONER ROE MELBOURNE, 19 FEBRUARY 2015

Unfair dismissal - extension of time for lodging application.

[1] Ms Hess was employed by Sensis from February 2008 until her dismissal without notice for alleged serious misconduct on 4 December 2014. Sensis conducted an investigation into the alleged misconduct and put the allegations and the details of the evidence to support them to Ms Hess at a meeting on 28 November 2014. Ms Hess was given the opportunity to provide a response. A further meeting was held on 4 December 2014 and Ms Hess was dismissed after a short adjournment at the end of the meeting. The reasons for termination were then provided in writing.

[2] Ms Hess alleges that the termination was unfair because:

● She was not provided with three written warnings.
● She would have had an entitlement to long service leave if she had been dismissed after 25 February 2015.
● She does not believe that her explanations for the alleged conduct were given sufficient consideration.
● Account should have been taken of her cooperation with the investigation.
● The call centre director who signed the termination letter was not present at the meetings and neither was a HR representative.
● One of the managers present had a personal connection to her family.

[3] Ms Hess made her unfair dismissal application on-line on 30 December 2014. The 21st day after the dismissal was 25 December 2014. The first working day after Christmas Day was Monday 29 December 2014. I consider that the application was therefore one day late.

[4] Ms Hess took no action to dispute the termination prior to making the unfair dismissal application. Ms Hess was aware of the termination on the day it occurred. Ms Hess says that the reasons for her late application are:

● She was suffering from anxiety and depression and the termination exacerbated her condition.
● She was in financial difficulty as a result of the termination and had to focus on finding a new job.
● She only became aware of the possibility that the process utilised by Sensis was unfair after talking with family members and this did not occur until some considerable time after the dismissal.

[5] The Fair Work Commission issued directions on 16 January 2015 that the extension of time matter would be subject of hearing on 13 February 2015 and that Ms Hess was required to file an outline of her argument and statement of evidence and relevant documents by 27 January 2015. Ms Hess did not comply. There was telephone communication from the Fair Work Commission to Ms Hess to remind her of her obligations and Ms Hess responded on 9 February 2015 that she would provide the material as soon as possible. Ms Hess did not provide any material. Ms Hess failed to attend the hearing. There is no record on the Fair Work Commission file of any other direct communication with Ms Hess between 16 January 2015 and the hearing date. Ms Hess was however copied into correspondence with Sensis which included references to the hearing date and the directions for compliance. Sensis had earlier indicated that they did not oppose the application for extension of time and did not wish to attend the hearing. Some time after the start of the hearing we were able to contact Ms Hess by telephone and I decided to conduct a hearing on the telephone to hear Ms Hess’ submissions and evidence. On the morning of the hearing Ms Hess provided a medical certificate from a general practitioner dated 7 February 2015 that Ms Hess “is receiving medical treatment for anxiety and depression since August 2014 from this clinic”.

[6] Ms Hess confirmed that she was able to attend work between August 2014 and 4 December 2014 and did not have any time off work due to anxiety or depression. Ms Hess confirmed that in the period between 4 December 2014 and 25 December 2014 she applied for 12 jobs and attended an interview for a job. Ms Hess was successful in obtaining that job and commenced work in January 2015.

[7] Section 394(3) of the Act requires me to consider the following matters:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[8] I am not satisfied that the reasons for delay support a finding that exceptional circumstances exist which warrant an extension of time. The evidence falls well short of what would be required to satisfy me that Ms Hess was unable to make the application because of illness. Ms Hess was able to apply for jobs and attend an interview during the period. The nature of Ms Hess’ employment required her to be computer literate and I am satisfied that she had the skills and experience necessary to be able to complete the application form on-line without much effort. The fact that Ms Hess only considered making an application after her family suggested that there might have been a problem with the dismissal process is not a reason justifying the delay which establishes an exceptional circumstance. The actions of Ms Hess and her failure to respond to the directions of the Fair Work Commission in the period since her application was made, reinforce my view that Ms Hess was capable of making the unfair dismissal application but may have failed to give it sufficient priority. The fact that the period of delay is very short means that it is more likely I would find that exceptional circumstances existed justifying an extension of time if there were factors justifying the delay. However, in the circumstances of this case the reasons given for the delay are too weak. The reasons for delay are a factor which stand against the granting of an extension of time in this case.

[9] Ms Hess was aware of the dismissal on the day it occurred. This is a neutral factor.

[10] Ms Hess did not take any action to dispute the dismissal prior to making the application. This is a factor which stands against the granting of an extension of time.

[11] There is no prejudice to the employer and this is accepted by the employer. This is a neutral factor.

[12] I have not had the benefit of all the evidence which might be considered in determining the merits of the application. However, I have sufficient evidence to be able to conclude that:

● If the matters alleged by Sensis are established then there is a valid reason for termination for serious misconduct.
● Primarily the case of Ms Hess focuses on the fairness of the process utilised by Sensis.
● Ms Hess concedes that the allegations were put to her in advance, she had an opportunity to respond to the allegations, there was a further meeting prior to the termination, and the reasons for dismissal were given in writing. Ms Hess has not alleged that she was denied the opportunity to have a support person present.
● Some of the reasons advanced by Ms Hess as to why the process of the termination was unfair are unlikely to be persuasive and in particular the lack of three written warnings, the fact that there may have been a long service leave entitlement if the employment continued for three further months, the absence of HR from the meeting and the presence of a manager who had a family connection.

[13] I am unable to conclude that the case is without merit, however, on the material available to me I do not consider the case to be a strong one.

[14] My decision either way in this matter would not offend fairness for other persons in a similar position.

[15] In this case the reasons for delay are insufficient to support a finding that exceptional circumstances justifying an extension exist and there are no other factors which stand in favour of such a finding. I have therefore decided to dismiss the application for an extension of time and an order to this effect will be issued.

COMMISSIONER

Appearances:

Ms Hess represented herself.

The Respondent did not appear.

Hearing details:

2015

Melbourne

February 13

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