Ms Natasha Matthews v The Trustee for Greensill and Company Trust T/A Greensill & Co Pty Ltd

[2019] FWC 7604

[2019] FWC 7604

FAIR WORK COMMISSION

DECISION

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

Ms Natasha Matthews
v
The Trustee for Greensill and Company Trust T/A Greensill & Co Pty Ltd
(U2019/8357)

COMMISSIONER SIMPSON BRISBANE, 5 NOVEMBER 2019

Application for unfair dismissal – Jurisdictional objection – Application within time – Objection dismissed.

[1] This matter concerned an application made in accordance with section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The application was made by Ms Natasha Matthews (the Applicant) who alleges her employment with The Trustee of Greensill and Company Trust T/A Greensill & Co Pty Ltd (the Respondent) was terminated unfairly.

[2] On 29 July 2019 the Commission received a “Form F2 – Unfair Dismissal Application” from Ms Matthews. Part 1.4 of the application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Ms Matthews answered on the Form F2 “Yes”.

[3] On 9 August 2019 a Notice of Listing was sent to the parties advising them that the application was listed for conciliation on 30 August 2019.

[4] On 14 August 2019 a Form F3 was filed by the Respondent. The Form F3 raised a jurisdictional objection that the application was filed out of time. The Form F3 included that Ms Matthews was notified of her termination on 5 July 2019.

[5] On 2 September 2019 a Form F4 was filed by the Respondent objecting to the application alleging it was made more than 21 days after the dismissal took effect.

[6] A directions hearing was held on 3 October 2019 for further programming of the matter. The parties were directed to file submissions and evidence in relation to the jurisdictional objection as raised in the application in preparation for jurisdiction hearing on 4 November 2019.

[7] At the hearing on 4 November I granted leave for Ms Edwards of Dismissals Direct to represent the Applicant and Mr Waters of MRH Lawyers to represent the Respondent. At the commencement of the hearing the parties confirmed the material filed and relied upon.

Legislation

[8] Section 394 of the Act relevantly provides:

“Section 394 Application for unfair dismissal remedy

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWCC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the GWC is satisfied that there are exertional 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;

(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.”

Respondent’s submissions and evidence

[9] The Respondent filed an outline of submissions and witness statements from Mr Allan Mahoney and Ms Alexandra Logan in relation to the jurisdictional objection, however ultimately did not rely on evidence from Ms Logan. The Respondent asserted that the Applicant was terminated on the evening of 5 July 2019 and filed her application on 29 July 2019. It contended that there are no exceptional grounds to grant an extension of time to lodge the unfair dismissal application.

[10] The Respondent submitted that the termination of the Applicant’s employment was unequivocally communicated by Mr Mahoney to the Applicant at approximately 7:30pm on 5 July 2019. It is submitted that Mr Mahoney communicated to the Applicant words to the effect, “you are no longer employed here”.

[11] Further, the Respondent submitted that the Applicant sent text messages to Mr Mahoney and Ms Logan on 7 July 2019 stating, “I feel fit to return back to work” and further again on 8 July 2019, “is it that I no longer have a job at greenhill”. The Respondent contended the text message correspondence sent on behalf of the Applicant demonstrates she pled her case and does not detract from her termination on 5 July 2019.

[12] The Respondent referred to section 394(3) of the Act which appropriately allows the Commission to grant an extension of time in filing an unfair dismissal application in exceptional circumstances. Further to this, the Respondent referred to the decision in Nulty v Blue Star Group Pty Ltd, 1 stating that ‘exceptional circumstances’ is to be given its ordinary meaning of “out of the ordinary course, or unusual, or special, or uncommon course, unusual, or special, or uncommon but does not need to be unique, unprecedented or very rare…”

[13] It is the Respondent’s view that the Applicant refused to accept her termination and continued to contact the Respondent with a hope she could change the employer’s decision. The Respondent considered that this was not out of the ordinary course, unusual, special or uncommon and does not give rise to exceptional circumstances as prescribed by the Act. Further to this, the Respondent submitted that the Applicant had accepted her termination on July 8 2019 and consequently collected her belongings on July 10 2019. Therefore it is contended the Applicant became aware of her termination on 5 July 2019.

[14] The Respondent also made submissions on any action the Applicant made to dispute her termination. It was submitted that the Applicant’s text messages constituted an approach to the Respondent to reconsider its decision and considered that it should be treated as neutral or negative to the Applicant’s case in this matter. In formulating this view, the Respondent referred to the decision in Brodie-Hanns v MTV Publishing Ltd, 2 which found that any action taken by the employee that left the employer “in no doubt” that its decision to terminate was in active dispute was a neutral factor and further, considered this to be an “initial approach to the Respondent to reconsider its decision”.

[15] The Respondent further considered that the application is without merit, as multiple warnings were issued to the Applicant throughout her employment and therefore, should be dismissed as no exceptional circumstances was present to give rise to an extension of time.

[16] Mr Mahoney did not provide a witness statement as such but gave oral evidence. Mr Mahoney said he had been employed with the Respondent for eleven and a half months and was the Global Operations Manager. He said he was responsible for discipline and termination.

[17] Mr Mahoney was asked if he had an excellent recollection of dates and he responded “Not a chance”.

[18] Mr Mahoney said he remembered a telephone conversation with the Applicant on 5 July and said he could remember it was Friday because he was trying to lose weight and he would allow himself a drink of bourbon on a Friday.

[19] Mr Mahoney said the call lasted no longer than 15 minutes and the tone of the Applicant was abusive. He said it didn’t start off abusive but it went to that because he would not answer questions.

[20] Mr Mahoney was asked whether he could remember if termination was discussed in his conversation with the Applicant. He said at the end of the call before he hung up, he tried to let the Applicant know that he had the wellbeing of her and others at the forefront of the decision.

[21] Mr Mahoney was asked why he was concerned about the Applicant’s wellbeing and he answered that the Applicant had told one of the Respondents floor supervisors that she had contemplated suicide.

[22] Mr Mahoney was asked if he could recall the words that were used to communicate to the Applicant that her employment had been terminated. Mr Mahoney said at that time the conversation was fairly heated one way and he said words which were difficult to hear from the audio recording but to the effect of he can’t take this and he had to take (which I understood to mean consider) her care and the care of others and he couldn’t put anyone in harm’s way and it was finished.

[23] Mr Mahoney was asked if he could recall mentioning that the Applicant was no longer employed and he said “correct and then I hung up.” Mr Mahoney was then asked how he call ended and he said that he hung up.

[24] In cross examination Mr Mahoney said the Applicant called her because she wanted to know why she wasn’t allowed back. Mr Mahoney said that the reason for the termination was not because of the tone of the phone call.

[25] When Mr Mahoney was asked when he decided to terminate the Applicant he said probably before the phone call. He said the reason was because of an incident at the facility. Mr Mahoney said the incident was that the Applicant told her supervisor she was going to commit suicide. Mr Mahoney confirmed that was the reason for the dismissal.

[26] It was put to Mr Mahoney that as it was his evidence that the Applicant called him on the Friday night, if the Applicant did not call him when did he intend to terminate the Applicant, and he responded on the start of business Monday morning.

[27] Mr Mahoney was asked if he sent the text message on Sunday 7 July which read “Sorry we need full clearing. Please speak to Alex beforehand. Thanks”. Mr Mahoney said he could not remember but accepted that he must have sent it.

[28] It was put to Mr Mahoney that the Applicant then sent a reply text “Ok I’ll see Alex tomorrow” and Mr Mahoney did not say anything in response to indicate that the Applicant that she had already been terminated. Mr Mahoney’s evidence was to the effect that he needed to let the owners of the company know on the Monday of his decision on the Friday night. His evidence was that he had not discussed his claimed decision to dismiss the Applicant prior to Monday 8 July.

[29] Mr Mahoney was asked about the text message of 7.20pm on the evening of Monday 8 July 2019 which appears to be in response to a text from the Applicant and reads as follows:

“As I said I ran out of time to get a clear decision. I believe as a company we have done the best we can by you in the situation. I do have others to consider. It would be best you look for a fresh start. Thanks”

[30] Mr Mahoney said he could not remember sending the text. It was put to Mr Mahoney that this text alone indicated that this was the first time it had been communicated to the Applicant that she was being terminated. Mr Mahoney did not accept that, but repeated that he was not good on the exact dates.

[31] The Applicant’s representative referred to a phone call log of 8 July 2019 which had not been filed with the material. Mr Waters did not object to my direction to provide the call log to the Commission and the Respondent. The call log was from the Applicant’s phone and was in same form as the earlier document attached to the statement of the Applicant.

[32] The call log indicated that the Applicant made a phone call to Mr Mahoney at 7.21pm on 8 July 2019. The Respondent submitted the call log does not indicate the duration of the call or that the call was answered.

[33] It was put to Mr Mahoney that the call log for 5 July recorded no phone call and the call log for 8 July indicated a phone call between the Applicant and Mr Mahoney at the time of around 7.20 in the evening that Mr Mahoney claimed he spoke to the Applicant on Friday 5 July.

[34] It was submitted for the Respondent in closing that the Applicant would have had a copy of the call log for 8 May 2019 when she wrote her statement given the specific times referred to in her statement. The Respondent said in the Applicant’s own evidence she did not say that the termination occurred during a telephone conversation on 8 May 2019.

[35] The Respondent submitted that the text message of Monday 8 May where the Applicant said “..is it that I no longer have a job at greensill” came from a phone call from Mr Mahoney on the previous Friday.

[36] The Respondent submitted that Mr Mahoney’s text message of 8 May at 7.20 was on the basis that the Applicant was not getting the message and Mr Mahoney being nice.

[37] The Respondent also pointed to the inconsistency between the Form F2 and her sworn statement concerning when she dropped in her medical certificate.

Applicant’s submissions and evidence

[38] The Applicant filed an outline of submissions and a witness statement from Ms Matthews in reply to the jurisdictional objection as raised by the Respondent. The Applicant asserted that her dismissal took effect on 8 July 2019 and as a result the application was filed in time on 29 July 2019.

[39] The Applicant submitted on or about 17 June 2019, a colleague enquired about her health. She was later called to the office in order for the Respondent to provide a duty of care and she was cleared by a psychologist later that day. Further to this, the Applicant took a sick leave on or about 18 June 2019 and on her return on about 19 June 2019, her manager asked if she had taken her medication. The Applicant contended that further accusations were made that she was under the influence of drugs or alcohol and she was sent home for the purposes of a medical clearance, which took two weeks to undertake.

[40] The Applicant submitted that on 5 July she provided her medical clearance and was told to contact the Health, Safety and Environment Manager, Ms Alexandra Logan. The Applicant submitted she could not get in contact with Ms Logan from 5 July 2019 to 8 July 2019. The Applicant stated she contacted Mr Mahoney confirming fitness for work and received a text message stating she needed to speak to Ms Logan. In her evidence, the Applicant stated she sent a text message on 7 July 2019, stating “I feel fit to return back to work”. Mr Mahoney replied stating, “sorry we need full clearance. Please speak to Alex beforehand. Thanks”.

[41] The Applicant stated she made further attempts to contact Ms Logan. The Applicant submitted she attempted to telephone Ms Logan on 8 July 2019 at 12:41pm and later decided to attend the office at 1:00pm that day to speak to her. The Applicant stated that Ms Logan was in a meeting and she asked one of her colleagues to request Ms Logan inform Mr Mahoney that she is clear to return to work.

[42] The Applicant said that at 1:25pm on 8 July 2019 Mr Mahoney telephoned that Applicant to inform her that he will be speaking to the manager of the Respondent, Mr Damian Botha that afternoon to discuss the Applicant’s return to work. Later that day, after further attempts to contact Mr Mahoney, the Applicant was informed that Mr Mahoney did not discuss the Applicant’s return to work with Mr Botha as he had run out of time. The following text message conversation ensured later that day.

[43] At 7:17pm on 8 July 2019 the Applicant stated:

“sorry to bother you Allan, I have just become aware that Alex has blocked my number on her mobile. I would have rung you but I’m so upset. Is it that I no longer have a job at Greensill?”

[44] At 7:20pm on 8 July 2019 Mr Mahoney replied:

“As I said I ran out of time to get a clear decision. I believe as a company we have done the best we can by you in your situation. I do have others to consider. It would be best you look for a fresh start. Thanks”

[45] On 9 July 2019 the Applicant received a text message from Ms Logan stating:

“hi Tash. Not blocked, I spoke with Allan yesterday morning and he plans to contact you to follow up re-work. If he didn’t contact you yesterday he should do so today with work rostering, Alex”.

[46] The Applicant submitted that she did not receive a call from Mr Mahoney on 5 July 2019, asserting that she was dismissed from her employment. With respect to the above, it is the Applicant’s position that she became aware of her dismissal on 8 July 2019 and therefore the application was made in time.

[47] The Applicants witness statement with attachments filed on 31 October was adopted by the Applicant. 3

[48] The Applicant was asked who she remembered she handed a medical clearance to on 5 July 2019 and said it was ‘Nicol’. It was put to the Applicant that in her Form F2 application it said that she handed in her medical clearance on 8 July. In oral evidence the Applicant maintained it was 5 July. The Applicant said she was not aware the Form F2 said 8 July.

[49] In oral evidence the Applicant repeated her written evidence that Mr Mahoney did not call her on 5 July where she referred to her call log from her phone and said the call log does not show he called her or he called her on 5 July. The Applicant also repeated her written evidence that she did not call Mr Mahoney on 5 July. The Applicant said she rang Mr Mahoney on 8 July, and denied that she was abusive.

[50] It was put to the Applicant that the medical certificate was handed in at the office on Monday 8 July at approximately 1pm and the Applicant denied that.

[51] It was put to the Applicant that Mr Mahoney will attest that he did not speak to the Applicant after 5 July. The Applicant said she texted Mr Mahoney on 7, 8 and 9 July. The Applicant said Mr Mahoney rung her on 8 July and said he was going to speak to ‘Damian’ about her employment.

[52] In closing it was put to the Applicant that Mr Mahoney was wrong about the call being on the Friday and that it was on the Monday and the termination occurred on the Monday.

Consideration

[53] There is a dispute as to whether a telephone conversation occurred at all between the Applicant and Mr Mahoney on the evening of Friday 5 July 2019. I am inclined to the view that while it is possible that the conversation did take place on 5 July 2019, it is more likely the conversation referred to occurred at 7.21 on Monday 8 July 2019.

[54] I prefer that view because it more logically flows from the wider context of the text messages being exchanged between the parties after 5 July 2019 which on their face do not support a conclusion that the Applicant had been told she was dismissed on 5 July 2019. Mr Mahoney also admitted that he was not good at recalling dates and also conceded he did not even remember the text messages which he accepted he would have sent over the weekend of 6 and 7 July.

[55] A heated phone call as described by Mr Mahoney would seem more likely to have occurred on the Monday evening given there is a text message from Mr Mahoney to the Applicant at 7.20pm on Monday 8 May stating it would be best for the Applicant to look for a fresh start, and a call log from the Applicant’s phone indicating the Applicant called Mr Mahoney one minute later at 7.21pm on Monday 8 May 2019. It would be unsafe to prefer Mr Mahoney’s evidence over the Applicant’s on the state of the evidence.

[56] Even if I am wrong on my primary conclusion, and the conversation did in fact occur on the Friday evening, then it is still not at all clear from the evidence that Mr Mahoney communicated to the Applicant that she had been dismissed in the course of a telephone call between them on the evening of Friday 5 July 2019. I am of this view again because of the text messages which generally points away from that conclusion. I am also of that view because Mr Mahoney’s oral evidence was not clear that he explained to the Applicant that she was terminated. I listened to his oral evidence carefully. Whilst the audio recording of his evidence is somewhat unclear I have attempted as best possible to replicate what he said earlier in this decision. I am not satisfied from Mr Mahoney’s own evidence that what he said to the Applicant amounted to a termination of employment.

[57] On the basis of the conclusions above, I prefer the view that the Applicant was not terminated until Monday 8 April and therefore there is need for an extension of time to be granted because the application was filed within time. The jurisdictional objection is dismissed.

[58] Given my conclusions it is strictly unnecessary to consider each of the matters in s.394(3), however for completeness I make the observation that in the circumstances of this case, without going into detail regarding each of the matters in s.394(3), I would have been minded to grant an extension on the basis of exceptional circumstances had I needed to consider the issue anyway.

[59] That is because on the state of the evidence it appears likely that given the manner of the conversation between the Applicant and Mr Mahoney it appears likely the Applicant did not understand that she had been dismissed. Evidence other than the evidence regarding the conversation itself including the text messages supports this conclusion. It is also clear that Mr Mahoney did not take available opportunities to disabuse the Applicant of her view that she remained in employment if his evidence were to be accepted about having terminated the Applicant on the Friday evening, which he should have done given it appeared from the text messages the Applicant subsequently sent him that she did not understand she had been dismissed.

[60] The jurisdictional objection is dismissed and the matter will be listed for directions.

COMMISSIONER

Appearances:

Ms M Edwards of Dismissals Direct Australia appearing on behalf of the Applicant

Mr M Waters of MRH Lawyers appearing on behalf of the Respondent

Hearing details:

2019.

Brisbane.

4 November.

Printed by authority of the Commonwealth Government Printer

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 1   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]

 2   Brodie-Hanns v MTV Publishing (1995) 67 IR 298

 3   Exhibit 1