Nicole Freeman v Box Hill Institute
[2018] FWC 7470
•17 DECEMBER 2018
| [2018] FWC 7470 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicole Freeman
v
Box Hill Institute
(U2018/9579)
| COMMISSIONER LEE | MELBOURNE, 17 DECEMBER 2018 |
Application for an unfair dismissal remedy - extension of time - application dismissed.
This is an edited version of the decision delivered ex tempore and recorded in transcript on 9 November 2018. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Nicole Freeman (the Applicant) claims that she was unfairly dismissed from her employment with Box Hill Institute (the Respondent).
The Applicant Ms Nicole Freeman claims that she was unfairly dismissed from her employment with the Respondent. There was some controversy in the evidence during the hearing about the date that the Applicant was dismissed from her employment. Ultimately, when the Applicant was questioned by me in relation to an email, marked as Exhibit A5, where she indicated that “I was sacked on the spot by the Box Hill Institute's Human Resources Manager, Russell MacAndrew in the gatehouse car park on the morning of Thurs 28 June”, she conceded that 28 June 2018 was the date of dismissal.
Ms Woodward, Human Resources Manager maintained that the effective date of dismissal was 29 June 2018. The facts are that the Applicant did not work on 29 June 2018. She was paid for 29 June 2018. The authority in Siagian v Sanel Pty Ltd,[1] made clear that where payment in lieu of notice is made, the dismissal usually takes effect immediately. I do not consider the circumstances are any different in this case. The dismissal took effect on 28 June 2018.
As required by section 394(2) of the Act, an application for an unfair dismissal remedy must be made within 21 after the dismissal took effect. The application should therefore have been lodged on 19 July 2018. The application was lodged with the Fair Work Commission (the Commission) on 16 September 2018 and was therefore made 59 days outside of the statutory time limit.
The matter was allocated to me for jurisdictional determination on the question of whether to allow a further period of time for lodging the application pursuant to section 394(3) of the Act, and a hearing was conducted on 9 November 2018. The Applicant appeared on her own behalf and gave evidence in the matter. Ms Woodward gave evidence on behalf of the Respondent. Ms Brick was granted permission to appear for the Respondent, as I was satisfied that given the particular circumstances around this matter, it was appropriate to grant permission, the particular circumstances giving rise to some complexities as to how the matter would proceed. In all the circumstances, Ms Freeman did not object to permission being granted and so permission was granted.
Section 394 of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. Section 394(3) sets out that a further period for the application can be made by a person under subsection (1) taking into account the various factors, being:
(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.
By way of background, the Applicant began working for the Respondent on 25 July 2016 as a sessional trainer and then on 1 January 2017 she started on a full time contract, which was a four year full time contract. The work she was involved in involved training in a prison environment. As I've already alluded to, the Applicant was dismissed on 28 June 2018, paid in lieu of notice until 29 June 2018. There was some reference in the materials filed to the Applicant being paid another two weeks in lieu of notice beyond that, however, that was not canvassed at the hearing and does not have any bearing on the matter that I am to determine.
The reasons for the Applicant’s dismissal were set out in the letter of termination that was in evidence and marked as Exhibit A3. Without going into great detail about that document, it included performance and conduct related reasons. This included that the Applicant had been late arriving to work on a number of occasions, that she had departed the prison late without approval on a number of occasions and there had been a failure to process all assessments on the day they took place or when needed as stated by her manager.
The Applicant claimed in response to those allegations that there were other matters that formed the basis of the dismissal. In any case, the Applicant’s position is that she contests to a significant extent, the allegations made, factually. She does concede in her witness statement which was marked as Exhibit A1 that she was late on several occasions, but that was partially true due to extenuating family circumstances as known by her immediate supervisor. Further, that she was absent from work without notice in respect of that issue was untrue, and she would be able to prove that with evidence and the allegation that she breached prison security protocols was untrue and unsubstantiated and whether there was a problem with her performance was also untrue and that all KPI’s were met and exceeded. Generally, in her evidence during the hearing, the Applicant refuted all of the other allegations that had been made about her performance. I will say more about those factors later in this decision.
In considering this matter, the relevant consideration is whether there are exceptional circumstances. As set out above, section 394(3) of the Act provides that a further period can be allowed for the application to be made if the Commission is satisfied there are exceptional circumstances, taking into account the factors set out at 394(3)(a)-(f) of the Act. The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty)[2] where the Full Bench set out the meaning of “exceptional circumstances” and I will apply the principles in Nulty to the circumstances in this case.
In respect of the reason for the delay, the Applicant when lodging the application which was submitted on 16 September 2018 indicated that she was aware that the application was late. At the time the Form F2 – Unfair dismissal application was lodged, there was no mention of any particular reason for the delay. Rather, what that Form F2 indicated (the relevant contents of which were repeated in the Applicant's witness statement) was that she had simply decided on advice that there was no point lodging an application at that time.
The Applicant stated in her witness statement, that she sought legal advice, which she said during the hearing occurred somewhere around 3 July to 14 July or in that general timeframe, which I note was well within the time period to lodge an application. The Applicant said:
“Following consultation with two different lawyers, who informed me, pursuing unfair dismissal would give me a moral victory but a significant financial loss and I gave up. I was exhausted, stressed and decided I’d be better putting my focus and energy into my new job. I was told an unfair dismissal was designed to look after workers who might have difficulty finding new work which didn’t apply to me, as I found a new job almost immediately. I considered pursuing bullying and harassment, which certainly applies to my circumstances; however, this could not be applied as I was no longer in the workplace.”
The Applicant’s evidence was that since her termination, two of her immediate colleagues had also been terminated and that her immediate supervisor was on indefinite stress leave. Relevantly, the Applicant stated “I'm submitting this claim in the hope it will trigger alarm bells” and talked about the dysfunctional and unsafe workplace that the Applicant claims the Respondent's workplace can be characterised by. When asked by me when she essentially changed her mind about when she was going to lodge the application, her answer was around 16 September 2018, when she in fact lodged the application. In response to a question that was put by Ms Brick to the Applicant during the hearing, the Applicant conceded that she had actually completed the application form on 19 July 2018 but said that she could not send it because she thought it was too late. I will say more about that later in the decision, but this is inconsistent with the evidence that I have just alluded to, that the Applicant simply decided not to lodge the application at that particular time. I do not accept the Applicant’s evidence that she did not send it at that time because she thought it was too late or she was too tired.
Further reasons given for the lateness in filing the application essentially relate to the illness of the Applicant’s mother. Tragically, the Applicant’s mother was diagnosed with a rare brain condition in February and she ultimately died on 25 October. The unchallenged evidence is that the Applicant’s step-father was blind and dependent on her mother and that had implications for the time demands on the Applicant. It was distressing and as a result of her new employment she has a long commute to Melbourne. There was also the death of a friend of the Applicant on 24 September 2018. The household in which the Applicant resides in Melbourne, associated with her new employment was subject to an eviction notice on 10 August 2018 and the Applicant was “a key support role in averting this and negotiating with multiple agencies as an advocate”. The Applicant provided a doctor's certificate dated 25 October 2018 which referred to medical conditions including stress, anxiety, high blood pressure, caused by losing her job and the recent death of her mother. The Applicant’s evidence was that that doctor’s certificate was sought at that time to deal with her application for an extension of time to lodge the submissions in respect of this extension of time application, which she had difficulty meeting because of the imminent and ultimate death of her mother.
I am not satisfied that any of these reasons either singularly or in combination are an acceptable reason for the delay in lodging this application. Firstly, as I have already alluded to, the Applicant was clear in her Form F2 that she had simply chosen not to pursue an unfair dismissal application on advice but she changed her mind when her supervisor became ill and two colleagues were dismissed and she wanted to raise alarm bells. That did not occur until 16 September 2018.
It is also clear on the evidence that the Applicant was capable and did complete the application form by 19 July 2018. There is just no acceptable explanation as to why it took a further two months for the application to be lodged. The illness of the Applicant's mother is a significant matter. She was ill from February 2018 until her death on 25 October 2018 and I do not doubt that that has caused great distress and anguish to the Applicant, not for a moment. However, the Applicant's dismissal was on 28 June 2018. The Applicant should have filed the application by 19 July 2018. However, there was a further eight weeks or so before the application was filed. During that period the Applicant was capable of doing quite a number of things, notwithstanding the illness of her mother. She was acting as an advocate and negotiating around the threatened eviction of the house. The Applicant clearly had the capacity to do that, but does not explain why there was no capacity to lodge an application with the Commission.
The medical evidence provided is well outside of the time frame that is relevant to my consideration. It was given more than a month after the application was lodged. The Applicant also gave evidence at the hearing in response to questions from Ms Brick that she was engaged in campaign activities as a candidate for Victorian Parliament and that she was also working during the relevant period. All of these are indicators of the Applicant’s capacity to lodge an application. They are not acceptable reasons for not doing so.
The death of the Applicant’s friend on 24 September 2018 is also very tragic, and I accept it would have had a significant impact on the Applicant. However again, this was outside of the time that the application was lodged. I have taken into account all of the circumstances and I am not satisfied there is an acceptable reason for the delay and that weighs against a finding that there are exceptional circumstances in this matter.
As to whether the person first became aware of the dismissal after it had taken effect, it is clear on the evidence the Applicant was aware of the dismissal on the day that it took effect on 28 June. This is a neutral consideration.
In relation to the action that the Applicant took to contest the dismissal, I have referred to Exhibit A5 above, an email sent by the Applicant on 12 July 2018 to the Chief Executive Officer of the Respondent, Ms King. It covers a range of matters over a number of pages. It certainly, I think, can quite reasonably be characterised as contesting the dismissal and was sent within a reasonable and timely period after the dismissal took effect. It speaks of the terms that the Applicant spoke about today of restructuring her work life balance during the semester by taking Mondays and Fridays off and arrangements that had been made around that. The email stated, among other things, that she wished that students and colleagues were told the truth about what had occurred and that the reason she was dismissed was she had been struggling with a family crisis and various other factors and there was never a problem with her performance. The email also referred to the involvement of particular managers and stated that she loved her job and that a “great injustice has been done” terminating her in such a “harsh and humiliating way” and she did not understand why she wasn’t given “some grace and recognition” of all she had given to the job including hundreds of hours of unpaid overtime etc. I think that on any view it is a pretty clear dispute of the dismissal.
In response, sometime later, the Respondent replied with a letter marked as Exhibit A6 which, among other things, acknowledged that the Applicant was a trainer of the year finalist in 2018 however noted that, despite this, it was unfortunate she engaged in inappropriate and unprofessional behaviour. The email referred to the processes that had been followed in affecting the dismissal and ultimately indicated that without admitting liability and given the Applicant’s personal circumstances, the Respondent would be willing to change the Applicant’s termination to a resignation and asked that she accept that gesture of goodwill as a token of the stress and financial hardship the termination has caused the Applicant.
There was then an email exchange on 30 July 2018, marked as Exhibit A4 where in an email to Leanne Sumpter, the Applicant again, made observations about various staff at the organisation, attacking some staff members and praising others. That correspondence I'm not sure could be characterised as disputing the dismissal, but in any case, certainly the correspondence of 12 July 2018 was. Overall that could be seen as action to dispute the dismissal and that weighs in favour of a finding that there are exceptional circumstances in the matter.
Consideration of prejudice to the employer, the delay in evidence here is a reasonably long delay and the authorities make clear that that gives rise to a general presumption of prejudice.[3] On testing the evidence in relation to prejudice, the employer's concern did not seem to extend to anything beyond the witness evidence reliability. I am not satisfied that there would be much difference that 60 days would make in the circumstances of a case like this where the evidence is going to go to performance related management and so on. However, it is a reasonably long period of time and it does weigh slightly against, but only slightly, against a finding of exceptional circumstances.
In relation to the merits of the application, as mentioned earlier in this decision the Applicant’s dismissal was related to conduct and performance. The Applicant concedes that she was late on occasions but submits that there were reasons for that, related to her mother’s illness and other factors. She refutes essentially all of the claims made as to her performance. There was clearly a process where the Applicant was given warnings, there were show cause letters and responses to show cause letters. There was clearly a process followed in affecting the dismissal. There was a final show cause meeting which was titled in a way that the Respondent characterised as unfortunate which is an understatement, because it was titled the dismissal meeting, which the Applicant indicated at the hearing that given the title of the meeting, she did not have any interest in attending. That does raise issues, a significant issue about whether or not there were procedural flaws in the effecting of the dismissal.
The Applicant made the point and it was not contested that she was a finalist in the teacher of the year awards this year, not at some past year. There are clearly factors weighing for and against as to whether or not ultimately this would be found to be an unfair dismissal. Again turning to the authorities, when considering the merits of the application, the Commission, may consider whether the employee has a sufficient case. The Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called in an extension of time hearing and the hearing in this matter was no different. As a result of this, the Commission should not embark on a detailed consideration of the substantive case and I have not done that. My consideration of the evidence, such as it is and the submissions, is that the application for the reasons that I have alluded to is not without merit and in the circumstances, this factor weighs slightly in favour of a finding of exceptional circumstances.
As to the considerations in s.394(3)(f), fairness as between the person and other persons in a similar position, neither party made any particular submission on that, and it is a neutral consideration.
In conclusion, I am not satisfied that there is an acceptable reason for what is a fairly significant delay and that weighs against a finding of exceptional circumstances. In relation to prejudice to the employer, it is a long period of delay and there is a general presumption of prejudice. There was no particular evidence that was persuasive on the point. It weighs only slightly against a finding of exceptional circumstances. The Applicant did take some action that could be construed as disputing the dismissal which weighs in favour of finding the exceptional circumstances and the consideration of the merits weighs slightly in favour of a finding of exceptional circumstances. The other factors are neutral considerations.
Taking into account all of those factors, relevant factors in section 394(3)(a)-(f) of the Act, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for the making of an application for unfair dismissal remedy. I refuse to grant the extension of time. The application is dismissed.
An order giving effect to this decision has previously been published in PR702200.
COMMISSIONER
Appearances:
N Freeman on her own behalf for the Applicant
Z Brick for the Respondent
Hearing details:
2018
Melbourne:
9 November.
Final written submissions:
2 November 2018
<PR702982>
[1] Siagian v Sanel Pty Limited [1994] IRCA 2 (1994) 122 ALR 333
[2] Nulty v Blue Star Group (2011) 203 IR 1
[3] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
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