Naara Alegria v YTB Ventures Pty Ltd T/A Katsu King
[2024] FWC 1800
•9 JULY 2024
| [2024] FWC 1800 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Naara Alegria
v
YTB Ventures Pty Ltd T/A Katsu King
(U2024/6220)
| COMMISSIONER PERICA | MELBOURNE, 9 JULY 2024 |
Application for an unfair dismissal remedy
On 9 May 2024, Ms. Naara Ms. Alegria (“Ms. Alegria”) was dismissed from her employment with YTB Australia Pty Ltd (YTB).
On 31 May 2024, she made an application claiming she was unfairly dismissed from her employment. Unfair dismissal applications are required to made within 21 days of the dismissal taking effect. Her application was one day late.
The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).
For the following reasons, I have decided not to grant an extension of time and the application in this matter is therefore dismissed.
Was the Application made within 21 days after the dismissal took effect?
The 21-day period does not include the day on which the dismissal took effect.”[1] The dismissal took effect on 9 May 2024. The final day of the 21-day period was 30 May 2024 and ended at midnight on that day.
Ms. Alegria’s application was filed at 2:58 PM on 31 May 2024. It was not made within 21 days of the date on which the dismissal took effect. I need to consider whether to make an order to extend that period.
I may allow a further period for an unfair dismissal application to be made if I am satisfied there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether Ms. Alegria first became aware of the dismissal after it had taken effect; and
(c) any action taken by Ms. Alegria 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 Ms. Alegria and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.
Reason for the delay
Applicant’s submissions on the reasons
Ms. Alegria explained the reasons for filing her application one day late in her oral evidence. From the date of her dismissal until 24 May 2024, she was “dealing with the fact she was dismissed”.
On 24 May 2024, 15 days after her termination, she had prepared a draft of her unfair dismissal application and had contacted the firm Jewell Hancock Employment Lawyers to seek a free telephone consultation with that firm. She left a message with an administrative employee for a lawyer at the firm to call her back.
No one had returned her call. She rang the firm again on 29 May 2024. She spoke to a lawyer at that firm named Michael Kriewaldt. She was then informed she could obtain a time and date for the free consultation through an online system. Ms. Alegria used the online booking system, and the first available date was on 31 May 2024. She had the free consultation and then filed her application on that day.
Ms. Alegria had miscalculated 31 May 2024 as the last day to file her application within the statutory time limit. She had mistakenly thought that she was filing the application within time.
Consideration
Exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not need to be unique nor unprecedented, nor even very rare.
For the first fifteen days, Ms. Alegria was “dealing with the fact she was dismissed”.
Feelings of stress or sadness due to termination of employment are unfortunate but commonplace. The delay in getting an appointment with her lawyer cannot be regarded as being out of the ordinary. Lastly, her mistake in calculating the twenty-one days after the day of her dismissal cannot be regarded as a special circumstance.
Did Ms. Alegria first become aware of the dismissal after it had taken effect?
Ms. Alegria was notified of the dismissal on the same day it took effect. She had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by Ms. Alegria to dispute the dismissal?
Ms. Alegria took no action to dispute the dismissal prior to lodging her application.
What is the prejudice to the employer (including prejudice caused by the delay)?
YTB conceded there would be no prejudice if an extension of time were to be granted.
What are the merits of the application?
Ms. Alegria argues the real reason for her dismissal was due to a complaint regarding an unsafe system of work at her workplace. On 21 March 2024, she observed a manager and a shift runner using a metal bowl to transport hot oil from one side of the store to the other. She complained to the manager that this practice was not safe. The manager did not agree with her.
It was her evidence that, on the same day, she raised the hot oil issue on a Facebook Messenger team leader group chat. Her evidence was that management staff on the group chat “did not see an issue with straining oil an hour after it had been turned off”.
On 22 March 2024, Ms. Alegria filed an anonymous report to WorkSafe about the hot oil practice. On 26 March 2024, a WorkSafe inspector attended her workplace and assessed the hot oil policy. On 27 March 2024, YTB issued a new policy “completely
removing” the practice of handling hot oil.
Earlier on 19 March 2024, Ms. Alegria was given a verbal warning regarding her failure to follow the absence notification policy at work. She had only notified her manager 4 minutes before the shift she was unable to attend. On 27 March 2024, within two hours of the WorkSafe Inspector attending at her workplace she was given a written warning for the subject of the verbal warning on 19 March.
At the determinative conference, Operations Manager Ms. Belinda Nguyen and Chief Executive Officer Mr. Will Lo gave evidence the decision to change the verbal warning to a written warning took some time because Mr. Lo was busy and took some time to get to it. It was the evidence of Ms. Nguyen that YTB had sought advice from a HR consultant before 27 March 2024 and the final draft of the warning letter had come back on that day. The fact that the written warning was also issued on 27 March 2024 was an unhappy coincidence.
On 9 May 2024, Ms. Alegria received what was in effect two concurrent written warnings together with a termination letter. The letter relied on the following incidents:
· On 1 May 2024, she notified her employer of an absence from work due to illness. The 27 March 2024 warning letter specifies either four hours’ notice of absence or two hours for shifts before 9:00 AM. Ms. Alegria had notified her manager within the time specified in the warning letter. Her failure was the manner in which it was communicated. The 27 March 2024 written warning specified that the notification be made in a phone call. Ms. Alegria had notified the manager by a text message.
· On 2 May 2024, she failed to provide notice of her inability to attend her shift. Her manager had attempted to call her and had no reply until 10:43 AM.
· She provided no medical certificate for her absence on 1 to 3 May 2024.
· On 8 May 2024, she was directed by the Store Manager to take a 30-minute meal break, which commenced at 10:52 AM. The meal break finished at 11:22 AM. The Senior Team Leader contacted Ms. Alegria at 11:44 AM to inquire on her whereabouts. Twenty-two minutes after time allocated for the break ended, she informed her manager that she was suffering from a nosebleed. Ms. Alegria returned to work at 12:05 PM, 43 minutes after her meal break had finished.
On 9 May 2024, Ms. Alegria was called to a meeting with Ms. Nguyen. She was not advised the meeting concerned the termination of her employment nor was she offered the assistance of a support person. According to Ms. Alegria, the meeting took nine minutes.
Mr. Lo also gave evidence that YTB’s reasons to dismiss Ms. Alegria went beyond the matters referred to in the warnings. He gave evidence that she was either “late, sick or had cancelled shits for 32 of the last 76 days”. The absenteeism issue had been taken up with her verbally. Ms. Alegria conceded there had been verbal discussions about this issue.
Consideration of the merits as a factor
Ms. Alegria’s case rests on the motivation for her dismissal. The close temporal proximity of the receipt of the first warning to the attendance of the WorkSafe Inspector is highly suggestive. However, YTB and its witnesses indicate they had planned and sought advice on the first written warning well before that day. I cannot adequately assess Ms. Alegria’s claims on motivation for the dismissal on the limited evidence before me.
There is a real question whether a failure to send a text rather than a phone call notifying of an absence from work, or a failure to notify her employer of a late return on a lunch break because of a nosebleed, could found reasons to dismiss.
Ms. Alegria’s history of absenteeism raised by Mr. Lo in his evidence, and the acceptance by Ms. Allegria that it had been subject of informal meetings, may be relevant to an assessment of valid reason apart from the reasons relied on in the termination letter.
At first glance, on the limited and untested evidence given at the determinative conference, there appear to be defects in the manner in which she was terminated. The role of a warning is to give a worker a chance to remedy the defects in their performance. Giving two “warnings” in a termination letter defeats this purpose. Further, it is uncontested Ms. Alegria was not notified that the final meeting on 9 May 2024 was to discuss the termination of her employment. Mr. Lo and Ms. Nguyen conceded Ms. Alegria was not given the opportunity to bring along a support person.
None of the evidence before me presently has been tested. Nonetheless, it is at least arguable the process used to bring about the dismissal may support a finding of harshness under s 387.
Ms. Alegria’s history of absenteeism that had been the subject of informal meetings between Ms. Alegria and management may be relevant to an assessment of valid reason apart from the reasons relied on in the termination letter.
A determinative conclusion on the procedural fairness of the dismissal is only possible at a full hearing where the evidence may be comprehensively heard and weighed. Nonetheless, on the limited material before me, on a prima facie basis, the procedural issues are a factor in favour of an extension of time being given.
Fairness as between Ms. Alegria and other persons in a similar position
Neither party made submissions on this issue. There is nothing for me to weigh in my assessment of whether there are exceptional circumstances under s 394(3)(f).
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
· Reasons for Delay: The reasons for delay are routine rather than exceptional. Ms. Alegria took no action to prepare the application until fifteen days after her termination. The delay in the consultation with her lawyer and her mistake in counting the days following her termination are routine. This factor counts against an extension of time under s 394(3)(a).
· Merits: On the untested and limited evidence before me, there appear to be procedural defects in the method used to dismiss Ms. Alegria. In those circumstances, the merits of the application is a factor that counts in favour of an extension of time. under s 394(3)(e)
The considerations in s 394(3)(b), (c), (d) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):
· Notification of the Dismissal: Ms. Alegria was notified of her dismissal on the same day her dismissal took effect. She had the benefit of the full 21-day period to lodge her unfair dismissal application.
· Action to dispute the dismissal Ms. Alegria did not take action to dispute the dismissal apart from lodging her application.
· Prejudice to the employer: There is no evidence of prejudice against YTB.
· Fairness between persons No submissions were made on fairness arising between Ms. Alegria and other persons in a similar position.
I therefore conclude the reasons for the delay under s 394(3)(a) do not amount to exceptional circumstances. This factor counts against an extension of time. The merits of the application under s 394(3)(e) count in favour of an extension of time. All the other factors in s 394(3)(b), (c), (d) and (f) are neutral.
Only one factor counts in favour of an extension of time being granted. One counts against and the rest are neutral considerations. Therefore, on balance, taking into account all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[3]
COMMISSIONER
Appearances:
Ms. Naara Alegria, the Applicant, for herself.
Ms. Belinda Nguyen on behalf of the Respondent.
Hearing details:
8 July 2024
Microsoft Teams
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] PR776823.
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