Ms Sonia Kearney v Raymark Roofing Pty Ltd

[2015] FWCA 3854

[2015] FWC 3705

FAIR WORK COMMISSION

DECISION

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

Ms Sonia Kearney
v
Raymark Roofing Pty Ltd
(U2015/5157)

DEPUTY PRESIDENT WELLS HOBART, 10 JUNE 2015

Application for relief from unfair dismissal – extension of time.

[1] On Wednesday 29 April 2015, Ms Sonia Kearney made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) regarding termination of her employment with Raymark Roofing Pty Ltd (the employer).

[2] Both parties sought and were granted leave to be legally represented on the basis there were a broad range of issues to consider and that counsel would enable the matter to be dealt with more efficiently. Mr W Ash of Hall Payne appeared for Ms Kearney and Ms G Chen of Dobson Mitchell and Allport appeared for the employer.

[3] The employer, in its Form F3 – Employer Response, lodged on 7 May 2015, raised two jurisdictional objections, firstly, on the basis of the application having been lodged more than 21 days after the termination took effect, and secondly, on the basis that Ms Kearney had resigned and was not dismissed.

Background

[4] Ms Kearney commenced employment with the employer on 4 August 2014. Between 10 February and 11 March 2015 a number of issues arose within the workplace, which purported to include the employer reducing Ms Kearney’s hours of work. A conflict occurred between Ms Kearney and a work colleague on 11 March 2015 and Ms Kearney was directed to go home. She presented to her medical practitioner, obtained a medical certificate and effectively did not return to work after that date.

[5] On 13 March 2015 the employer wrote to Ms Kearney 1 advising of unsatisfactory work performance and inviting her to a meeting to discuss these matters. Ms Kearney, together with a support person, met with her employer - namely Mr Jamie Sawford and Mr Mark Hill - on 16 March 2015 to discuss the alleged performance issues. These alleged issues included an overpayment of wages. The meeting concluded with Ms Kearney to provide further information. On 31 March 2015 the employer sent a further letter2 to Ms Kearney raising an additional matter, namely the workplace conflict of 11 March 2015. In that letter the employer sought Ms Kearney’s urgent response to the matter. A meeting was organised for 7 April 2015, which was subsequently changed to 8 April 2015 at Ms Kearney’s request.

[6] It is common ground between the parties that prior to that meeting taking place, Ms Kearney sent an email resignation to the employer on Tuesday 7 April 2015 at 4:38pm. It was Ms Kearney’s position that she did so because she “…felt she had no choice but to resign.” 3 Her resignation stated: 4

“Hi Mark,

Thank you for your latest email regarding my failure to respond to your email of last week or attend work today.

Your email informing me of the change of time for the proposed meeting asked me to contact your [sic] further should the new meeting time be unsuitable. I didn’t reply to your email as Wednesday 8th April at 9.00am was suitable for me.

This situation continues to be unpleasant indeed. I am at a loss to [sic] what you actually want from me. I have asked you to clarify my role on numerous occasions and to this date and time you have not supplied me with that information. I have replied, and in response I have constantly been accused of issues that have disturbed me. I am happy to take responsibility for my errors, learn from my errors and grow. However you have provided no evidence that these were my errors. As you know I worked with another two colleagues who worked on the same duties.

The numerous discussions regarding the change has been mismanaged. I am a good person with strong morals and a good heart. I have given you my best. I am unable to offer you anymore [sic].

As owner / director of a business I would of thought you would have been able to manage this with more professionalism. I am disappointed in the way this situation has been managed and would have expected greater skill from someone who wished to be responsible for a business of this size.

I can go down different paths with this, but I have decided that what is best for me is to resign.

Please accept this letter as notice of my resignation.

While I have for the most part been satisfied with my time at Raymark, I feel that the situation has become somewhat untenable and it is now time to move on. However, I would like to thank you for the learning and opportunities that I enjoyed during my time here.

As there are no instructions about period of notice in my employment contract and given the current unpleasantness you will understand that I do not wish to return to the workplace and therefore my resignation is effective immediately.

Please pay my leave entitlements in the next pay period and forward me a payslip so I can have an accurate record. I have not received any payslips since I was stood down.

I look forward to you providing me with a full reconciliation of your alleged wage discrepancy. Once I have received that information from you, I will be able to seek further advice.

I wish you and the team all the best.

Kind regards
Sonia Kearney”

The Jurisdictional objections

[7] As stated previously, this application involves two jurisdictional objections. Whilst Ms Kearney submitted that her resignation was, in effect, a dismissal by her employer due to a course of conduct engaged in by that employer (pursuant to s.386(1)(b)), I am first required to determine the out of time objection. Should the out of time objection be upheld, there will be no requirement for me to consider the other merits of the application, as they relate to whether Ms Kearney was forced to resign, within the meaning of s.386(1)(b) of the Act.

Extension of time

[8] This application for an unfair dismissal remedy under s.394 of the Act was made on 29 April 2015. Should the termination of Ms Kearney’s employment be found to have taken effect on the day she emailed her resignation, namely 7 April 2015, and as contended by the employer, the 21 day timeframe under s.394(2)(a) of the Act would make the final date for lodgement on 28 April 2015. The application therefore would have been lodged one day out of time.

[9] Pursuant to s.394(2)(b), the Fair Work Commission (the Commission) can extend time for the lodging of an unfair dismissal application if it 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. 5

[10] Mr Ash as representative for Ms Kearney, citing Visscher v the Honourable President Justice Giudice (2009) 258 ALR 651 (Visscher), submitted that the application for unfair dismissal was made within time as the resignation of 7 April 2015 was invalid as it did not provide the requisite notice required under the National Employment Standards. He said the repudiation of the employment contract needed to be accepted by the employer, and that that acceptance did not take place until the employer acknowledged Ms Kearney’s resignation via email on 14 April 2015. Mr Ash submitted that prior to the email of 14 April 2015, it was reasonable for Ms Kearney to consider the employment contract remained on foot 6 and that the contract was not brought to an end until that date.7

[11] Mr Ash submitted further that as Ms Kearney’s employment entitlements were not paid to her by the employer until 12 May 2015, 8 the employment contract was not an end until that payment had been made (citing Melbourne Stadiums v Sautner [2015] FCAFC 20 (Melbourne Stadiums)).

[12] Further, it was Ms Kearney’s position that should her termination be said to have occurred on 7 April 2015, she relied on the existence of exceptional circumstances in that she was suffering medical issues associated with stress from her workplace and underlying issues with her gall bladder which, since her resignation, had required her to undergo an ultrasound of her gall bladder 9 in readiness for possible surgery; and that she had “mostly been resting at home”.10 Also it was Ms Kearney’s evidence that she was required to attend dental appointments for a cracked tooth on 13 and 23 April 2015.11

[13] Ms Kearney stated that on 24 April 2015 Dr Patiniotis determined that she did not require surgery at that time and that on 28 April 2015 she had been very unwell suffering from pain association with her gall bladder. She said that she felt better on 29 April 2015, was well enough to begin reviewing the material from her employer about her entitlements and alleged overpayment of wages, and at that time realised there was a 21 day timeframe for lodging the application. Ms Kearney then lodged the application that same day and sought legal advice on 4 May 2015.

[14] It was submitted by Mr Ash that there were exceptional circumstances in this matter as Ms Kearney’s medical condition was the reason for her one day delay in filing the application, combined with the confusion over matters related to the date of the finalisation of the employment relationship. He submitted there was no prejudice to the employer if an extension were to be granted and that Ms Kearney’s case had a reasonable prospect of success, when considering the conduct of the employer. Mr Ash submitted that no other person is relevant in the circumstance of this case and therefore s.394(3)(f) was not relevant.

[15] Ms Chen, for the employer, relied on Ms Kearney’s written resignation stating that is was “…effective immediately” and that Ms Kearney took no action to withdraw her resignation. It was submitted there is no nexus between the lack of acknowledgement by the employer of the resignation and Ms Kearney’s delay in filing her application. In the event that there was a nexus, Ms Chen stated that Ms Kearney was aware by at least 21 April 2015 12 that her resignation had been accepted (after experiencing 9 days of internet problems)13 and that there were no exceptional circumstances to explain the delay between 21 April and 29 April 2015.

[16] Ms Chen asserted that the decision of Melbourne Stadiums had no application as that matter had dealt with a termination with notice period and not a resignation by the employee. The employer sought to rely on State of New South Wales v Paige [2002] NSWCA 235 pp 277, 279, where it held:

“Subject to any contractual or statutory provision to the contrary, the act of resignation from employment, or from membership of an organisation, is a unilateral act that takes effect in accordance with its terms and does not depend upon its acceptance by the person or body to whom the resignation is directed. This common law principle is a reflection of the significance that the common law has always attached to personal autonomy.”

[17] The employer submitted that the absence of any acknowledgement of the resignation is irrelevant and that Ms Kearney ceased all duties as at 7 April 2015; sought her termination pay; and all of her actions in relation to her termination pay subsequent to 7 April 2015 were consistent with her resignation taking effect immediately.

[18] As Ms Kearney had taken no action to withdraw her resignation, it was submitted that s.394(3)(b) and (c) have no application in this case. The employer asserted no specific prejudice in this matter and that there were no issues of fairness in relation to any other person in a similar position.

[19] It was submitted by Ms Chen that the Commission is confined to considering only the existence of exceptional circumstances by way of the reason for the delay (s.394(3)(a)) and the merits of the application (s.394(3)(e)).

[20] Ms Chen stated there was no independent medical evidence to support Ms Kearney’s contentions that she was too ill to lodge her unfair dismissal remedy application and on her own evidence she did not seek legal advice until 4 May 2015. It was said that there was no satisfactory explanation for the reason for delay as required by s.394(3)(a).

[21] The employer made submissions in relation to the merits of Ms Kearney’s application asserting that a course of action as provided for in s.386(1)(b) could not be made out. It was said the employer did not participate in a course of action that left Ms Kearney with no option but to resign. It was said this was evidenced in the correspondence from the employer to Ms Kearney that no decision had been made in relation to the performance issues raised 14 and in Ms Kearney’s resignation.

Consideration

[22] In order for an extension of time to be granted, I must be satisfied that exceptional circumstances exist, having considered the criteria set out in s.394(3) of the Act, taking into account:

(a) the reason for the delay;

[23] Ms Kearney was, by her own evidence, aware on 29 April 2015 that a timeframe of 21 days existed for lodging her application and that she was outside of that timeframe. Ms Kearney could only be aware that she was outside of that timeframe if she considered that the termination occurred on 7 April 2015. I find that as Ms Kearney stated her resignation was “effective immediately” and her not presenting for work, Ms Kearney had deemed the employment relationship to be at an end as at 7 April 2015. As such I do not consideration there was sufficient uncertainty in the mind of Ms Kearney to explain a delay in filing her application. In the event I am wrong about that, it is clear Ms Kearney was aware on 21 April 2015 that the employer had accepted her resignation of 7 April 2015.

[24] I have carefully considered the authorities on which the applicant sought to rely, namely Visscher, Melbourne Stadiums and others. 15 However, I have determined that these cases, whilst instructive, are not on point with the circumstances of this application. In particular, if I accepted the submissions of Ms Kearney that her termination did not take effect until her entitlements were paid out on 12 May 2015, I would be faced with the circumstance that her unfair dismissal application made some 14 days prior to her termination taking effect. Such illogicality cannot be countenanced.

[25] I am unconvinced that Ms Kearney has properly accounted for all of the time leading upto the delay in lodging her application. If I accept that 21 April 2015 as the date on which Ms Kearney became aware her resignation was accepted, it does not change the fact the resignation was made and effected by her on 7 April 2015. Ms Kearney, at that time, had seven days in which to lodge her application within time. Whilst she was required to attend doctors’ appointments and a dental appointment on 23 April 2015, nothing in her evidence provides verification of incapacity to complete and lodge an unfair dismissal remedy application. To the contrary, Ms Kearney provided evidence that she spent most of the time “resting at home” or attending appointments with her doctors or dentist.

[26] In Arida v Lifestylelogic – Pestrol – Pure Water Queensland[2015] FWCFB 1260, per Ross J, Gostencnik DP and Johns C, a decision dealing with an appeal against of Sams DP, the Full Bench said at paragraphs [10] and [11]:

“[10] In the Decision the Deputy President considered each of the matters specified in s.394(3)(a) to (f). At paragraphs [7]-[9] of the Decision the Deputy President set out the reasons advanced by Mr Arida for the delay in lodging his unfair dismissal application, that is:

“[7] The reasons the applicant provided for his delay in lodging the application were expressed as follows:

‘