Ms Monique Van Oorschot v Ch James Pty Ltd
[2021] FWC 442
•29 JANUARY 2021
| [2021] FWC 442 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Monique Van Oorschot
v
CH James Pty Ltd
(C2020/5234)
DEPUTY PRESIDENT LAKE | BRISBANE, 29 JANUARY 2021 |
Application to deal with a general protections dispute involving dismissal – extension of time – circumstances not exceptional – application dismissed.
Background
[1] This decision concerns an application by Ms Monique Nynke Van Oorschot (Applicant) under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal. Section 366 of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2).
[2] The Applicant claims she was dismissed on ‘Sunday June 7th’, being Sunday, 7 June 2020, and she filed her application with the Commission on 6 July 2020. The filing occurred 29 days after the date the Applicant claims her dismissal took effect, being approximately 8 days outside the 21-day statutory timeframe. She seeks an extension to be granted for filing.
[3] The Respondent states that it did not dismiss the Applicant, rather the Applicant resigned of her own volition on 28 May 2020.
[4] My Chambers issued directions for the parties to file materials for a hearing of the extension of time matter, which was listed for 9 October 2020.
[5] There are two matters that need my attention in this matter. Firstly, I need to determine whether there was a dismissal and if so whether I should grant a further period for the application.
Was there a Dismissal?
[6] The evidence of the Applicant was that during a discussion on 7 June 2020 regarding the lack of work breaks, a matter that had been the subject of previous discussion and disputation, on pressing the matter again she claims that the Respondent said “how about we call this your last shift” to which she replied “how about we call this unfair dismissal”. The Applicant stated she completed the shift and returned her key.
[7] The Respondent submits that the Applicant resigned from her employment on 28 May 2020. Mr Theo Krambias, operator of the Respondent business, filed a statement in these proceedings and states that the Applicant asked to speak with him when he arrived at work on 28 May 2020, and that the Applicant said words to the effect: “my alternate place of work wants me to do more. I like it is [siq] I am learning and it is different to hospitality, so I want to leave”. Mr Krambias says he replied to the effect of “we will miss you, would you like to stay on one day per week on Saturday?” and that the Applicant replied “I will finish this fortnight and we will see”.
[8] Mr Krambias submitted a handwritten diary note that he prepared following that conversation on 28 May 2020 which confirmed the words above.
[9] He states the Applicant’s final day was 7 June 2020.
[10] The accounts of the reasons for the dispute, and whether there was a dismissal or resignation are in dispute. No further witnesses were called to lend support to one version or the other. The Applicant’s version is that of the business operator having not allowed her regular work breaks, and she further attested that she had involved the Fair Work Ombudsman to assist in the resolution of an overtime dispute that she had with the Respondent previously. She was forthright in her manner and strident in her allegations, however her criticisms seemed to be personally driven and indicated to me a strong degree of animosity towards the Respondent.
[11] The Respondent provided a rational and reasonable explanation of events leading to the termination, with Mr Krambias providing his own notes made contemptuously with the discussion of 28 May 2020. These notes supported his contention that the Applicant made her own decision to prioritise her course and other job. In this case I must make a determination based upon the witness testimony and my view of the evidence that has been put before me.
[12] The Respondent presented as a credible and believable witness, stating that the Applicant had taken up a second job more in alignment with her career objectives and the position at the café was becoming more onerous on her time as her course and work were necessarily a priority for her. I find that the Respondent’s version of the account to be the more credible. He presented factually, and with no evidence of malice or ill feeling to the Applicant. Mr Krambias stated that he was genuinely surprised by the actions of the Applicant, as he had provided a flexible work schedule in the past.
[13] On the evidence before me, I find that the Applicant resigned and the reasons she gives for her dismissal are not representative of what happened.
[14] Applications brought under s.365 of the Act require that the person has been dismissed, in contravention of the general protections provisions. The meaning of dismissed is relevantly provided at s.386 of the Act as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[15] In this case, I have determined that the Applicant’s employment was not terminated at the employer’s initiative. Further, there is no evidence before the Commission that the Applicant was forced to resign because of the conduct, or a course of conduct, engaged in by the employer.
[16] Accordingly, I find that there was no dismissal for the purposes of sections 365 and 386 of the Act, and accordingly the Applicant’s application is not capable of proceeding.
[17] However, for completeness I have considered the matter to be determined regarding the extension of time for filing. On this matter, I find that there were no exceptional circumstances, individually or collectively, to support an extension of time being granted for the Applicant to make her application. I provide my reasons as follows.
Consideration of whether a further period should be granted
[18] Under s.366 of the Act, a general protections application under s.365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.3662(2) of the Act. Section 366(2) sets out the circumstances in which the Commission may allow a further period for an application to be made:
“(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.”
[19] Satisfaction of ‘exceptional circumstances’ establishes a high bar for the Applicant. 1 The meaning of ‘exceptional circumstances’ was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd2 (Nulty), where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.3 The Full Bench also stated that ‘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 can be considered exceptional.’4
Section 366(2)(a) - reason for the delay
[20] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 5 or a reasonable explanation.6 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,a Full Bench of the Commission noted that the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, and that all of the circumstances must be considered.7 However, ‘mere ignorance is not a reasonable or sufficient explanation for delay.’8
[21] The period of the delay is the period commencing immediately after the time for lodging an application expired, and ending on the day the application was lodged. However, the circumstances from the date on which the dismissal took effect can be considered in assessing the explanation for the delay.
[22] The Applicant submits that she was employed with the Respondent from 5 April 2019, until the termination of her employment on 7 June 2020. As to the delay for filing, the Applicant relies on two key reasons as follows.
[23] The Applicant submits that she had been seeking legal advice, as she was unsure of the application and Commission process, and therefore sought assistance regarding these matters. She noted she was not financially able to seek paid legal advice and was seeking advice from a ‘free employment lawyer’ but was put on a ‘waitlist’.
[24] The Applicant submits that her understanding on reading about the Form F8 General Protections application online was that she required all statements and supporting documents to be prepared prior to filing the form. She concedes she later discovered that only the completed form itself was required to be submitted within the 21-day timeframe.
[25] She states her second reason for the delay was that she was mistaken regarding the date of her dismissal ‘by one week’, and only realised she was outside the timeframe for filing on attempting to file the application and reviewing her final payslip.
[26] In response to the Applicant’s submission that the delay for filing was due to her seeking to obtain legal advice, and mistaking the alleged date of dismissal by one week, the Respondent submits that these are not ‘exceptional circumstances’ within the definition of s.394(3) of the Act. The Respondent refers here to the decision in Lucian Lombardo v Commonwealth of Australia 9 where it was stated the phrase ‘exceptional circumstances’ is a high threshold, and that the Applicant’s reasons here do not disclose any unusual, special or uncommon circumstances as to meet that high threshold.
[27] Following the hearing in this matter, the Applicant sought to file an additional statement on 10 November 2020. In this further statement, she raised a number of further matters regarding the ‘reason for the delay’ as follows.
[28] In her reply statement, the Applicant submits that Mr Krambias terminated her employment on 7 June 2020.
[29] The Applicant submits that following her dismissal by the Respondent, her ‘secondary employer’ offered her full-time hours in a new role with additional responsibilities. In this role she was required to work Monday to Friday, 9am-5pm. She states it took her some time to adapt to her new responsibilities, before she felt confident to take time during the working day to make personal phone calls and make up her hours later in the day, unsupervised.
[30] She states that taking on this full-time role impacted her ability to research and pursue this current dismissal matter before the Commission. She notes that in many matters before the Commission, applicants would not have immediately transitioned to full time work following their dismissals, and such persons would therefore have more time available to them to research and progress their applications.
[31] The Applicant further submits that it was due to her new role and new responsibilities that she was confused regarding her final day working for the Respondent. She states that she was busy and lost track of how much time had passed.
[32] The Applicant made contact with the Fair Work Ombudsman and Legal services on 1 July 2020, noting she sought advice to support a fair calculation of compensation to put to Mr Krambias. She said that she had previous dealings with the Fair Work Ombudsman, and had been advised regarding her previous matter that she should seek to resolve the matter directly with her employer. She hoped she would resolve this dismissal matter in the same way. Her evidence is also that at this point, she believed her dismissal matter was one for dealing with the Ombudsman, which she believed ‘did not have a strict time limit’ regarding workplace disagreements.
[33] The Applicant concedes in her evidence, however, that following the calls of 1 July 2020, she became aware that her dismissal matter needed to be filed in the Commission within 21 days of the dismissal. She states however at this time she believed her dismissal had been on 14 June 2020.
[34] The Applicant also states that on 1 July 2020, she was given contact details for free legal services to contact, but that the first place she contacted did not have appointments available until August.
[35] The Applicant’s evidence is that, on learning on 1 July 2020 that her application needed to be filed in the Commission within 21 days of her dismissal, she “quickly submitted [her] application on July 5th”. She confirmed the application was filed on her belief that the dismissal occurred on 14 June 2020. She confirmed her evidence that she only realised her application was filed one week late when she cross-checked her application and the final payslip attached.
[36] The Applicant submits that she suffers from anxiety and has sought treatment from a psychologist, during her employment with the Respondent. She states she had not required treatment for her anxiety for a number of years prior, and that her anxiety was impacted as a result of the pressure of working long hours and the lack of proper break times.
[37] The Applicant submits that in November 2019, she visited a doctor about her physical symptoms and was issued a medical certificate ‘for mental health’ due to the exhaustion of regularly working 50 to 55 hour weeks.
[38] The Applicant states following her dismissal, she has experienced periods of anxiety which impacted her perception of the application process, and her having to “put a lot of emphasis on needing everything perfectly prepared prior to starting a claim”. She submits this impacted her ability to properly research the application process within the statutory timeframe, as she finds it difficult to focus at times of high stress and requires breaks to avoid becoming overwhelmed.
[39] Having regard to all the reasons for the delay raised by the Applicant as against the requirements of this section, I find that these reasons are not exceptional as required by the Act, and do not weigh in favour of an extension.
Section 366(2)(b) - Action taken to dispute the dismissal
[40] As to any action the Applicant took to dispute her dismissal, she states that during the conversation leading to the termination of her employment, she told her employer that it was an unfair dismissal, and therefore the Employer was on notice that an application would likely be lodged. She concedes however that she had no further communication with the Respondent until filing her Form F8 application.
[41] The Respondent made no submissions as to this criterion.
[42] On the evidence before me, I regard this as a neutral factor.
Section 366(2)(c) - Prejudice to the employer
[43] The Applicant submits that the delay is not such that would cause any prejudice to the employer.
[44] The Respondent made no submissions as to this criterion.
[45] On the evidence before me, I regard this as a neutral factor.
Section 366(2)(d) - Merits of the application
[46] As to the merits of her Form F8 application, the Applicant submits that she exercised a workplace right which lead to the adverse action against her. She states that the Employer has taken no actions since, to provide the conditions to the staff that remain in employment. She submits there have been ‘multiple instances’ of ‘the workplace right’ being discussed by the Applicant and other staff, with no acknowledgement of the issue by the Respondent.
[47] As part of her submissions in support of this application for an extension of the time for filing, the Applicant provided her transcript of conversations had leading up to the termination of her employment, and her account of her attempt to exercise her workplace right to take her break.
[48] The Applicant also submitted a letter to the Respondent, sent subsequent to the filing of her F8 application, outlining a proposed settlement.
[49] As to the merits of the Applicant’s application, the Respondent replied as follows.
[50] Mr Krambias disputes that the Applicant was dismissed, and states he has no recollection of the alleged conversations transcribed in the Applicant’s material.
[51] Mr Krambias submits that the Applicant resigned from her employment on 28 May 2020. In this regard, I note the evidence as outlined at paragraph [7] of this decision, including the handwritten diary note that Mr Krambias prepared following that conversation on 28 May 2020.
[52] The Respondent seeks that the Applicant’s application for an extension for filing be dismissed on the basis of this evidence.
[53] In her further statement filed in November, the Applicant added that as to the merits of her application, it is the responsibility of the employer to inform its staff of break entitlements and ensure breaks are taken and for the appropriate time, particularly where the staff are working shifts in excess of 10 hours.
[54] The Applicant also submitted a text message she sent to a colleague, with the colleague’s reply showing a date stamp of 7 June:
“So Theo wasn’t happy with my attitude yesterday re: him not giving anyone breaks. Today I started at 12 so wasn’t having a break and he fully just laughed. I said that’s not okay, he went on about my bad attitude and respect I said he should respect his staff by him giving them breaks. Then I quote
Him: “how about we call this your last shift”
Me: “how about we call this unfair dismissal””
[55] Given that this is a matter where there are quite some matters in dispute on the facts. and without all the relevant evidence being led and tested, I am unable to make a determination on the merits. I weigh this as a neutral factor.
Section 366(2)(e) - Fairness as between the person and other persons in a similar position
[56] The Applicant submits that as to fairness between the Applicant and other persons in a like position, anyone in her position should be entitled to have their dismissal application heard. She states regarding the adverse actions taken by the Respondent, the Respondent should be held accountable for unlawful practices. She submits that the minor delay in filing the application should not “absolve the employer of their malpractice”.
[57] The Respondent made no submissions as to this criterion.
[58] I note the Applicant’s submissions are not relevant to the consideration of ‘fairness between the Applicant and persons in a like position’ as contemplated by s.366(2)(e) of the Act, and accordingly do not weigh in favour of granting an extension. I regard this factor as neutral.
Conclusion
[59] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
[60] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.
[61] In accordance with paragraphs [13]-[15] of this decision, I have determined that there was no dismissal and therefore this matter would not be able to proceed, and on the matters outlined above regarding the extension of time matter, I find that even if the dismissal had occurred I would decline to grant an extension of time under s.366(2).
[62] For these reasons, the Applicant’s application under s.365 of the Act is dismissed.
[63] I Order accordingly.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR726515>
1 Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].
2 [2011] FWAFB 975.
3 Ibid citing Baker v The Queen (2004) 223 CLR 513 at 573 and since cited with approval in Tamu v Australia for UNHCR[2019] FWCFB 2384.
4 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
5 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, at [9] (Gostencnik DP).
6 Roberts v Greystances Disability Services; Community Living [2018] FWC 64, at [16] (Hatcher VP).
7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39].
8 Selic v Corporation of the Synod of the Diocese of Brisbane[2020] FWC 22, at [26].
9 [2014] FWCFB 2288.
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