Patricia Gutterson v Australian Footwear Pty Ltd T/A Munro Footwear Group
[2023] FWC 408
•20 FEBRUARY 2023
| [2023] FWC 408 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Patricia Gutterson
v
Australian Footwear Pty Ltd T/A Munro Footwear Group
(U2022/11059)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 20 FEBRUARY 2023 |
Application for an unfair dismissal remedy – jurisdictional objections raised – minimum employment period not met - application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
Introduction
On 18 November 2022, Ms Patricia Gutterson (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Australian Footwear Pty Ltd T/A Munro Footwear Group (the Respondent) on 13 October 2022 was unfair. The Applicant seeks an order for reinstatement.
On 18 December 2022, the Respondent filed its Form F3 response to the unfair dismissal application in which it raised two jurisdictional objections to the application, that being the Application was made out of time and that the Applicant’s employment does not meet the minimum employment period (MEP).
The matter was listed for mention/conference before me on 4 January 2023. The matter was then listed for a determinative conference on 17 February 2023. At the conference Ms Gutterson appeared and gave evidence. Ms Phillipa Preston, HR Shared Services Lead, appeared for the Respondent and also gave evidence.
Background and evidence
The Applicant commenced employment as a casual employee with the Colorado Group in around 2007 according to Ms Preston[1]. She accepted an offer of casual employment (the Contract of Employment) as a Sales Assistant with Diana Ferrari Pty Ltd, a company within the Colorado Group, commencing 1 May 2014[2]. In around June 2018, the Respondent acquired all of the assets of the Colorado Group and the Applicant commenced employment with the Respondent[3].
Ms Preston states that between 1 January 2020 and 1 January 2022, COVID-19 lockdowns impacted the Applicant’s home store for a total of approximately 38 weeks, which resulted in that store being open for 66 out of the 104 weeks in that 2 year period. The Applicant’s home store reopened after the final lockdown on 5 November 2021. In the period 7 March 2020 to 11 May 2022, Ms Preston states the Applicant was absent from work for a considerable period of time, and while COVID lockdowns resulted in periods of stand downs, 79 weeks of this period were unrelated to COVID lockdowns[4].
Ms Preston states that the Applicant’s absences from work were due to significant delays in the Applicant providing medical clearances to return to work after non-work related personal injuries including;
failing to provide a medical clearance until June 2021 for a non-work related shoulder injury despite being first requested to provide a clearance in February 2021[5];
failing to provide an updated medical clearance in relation to a non-work related wrist injury until November 2021 despite being asked to provide the clearance in July 2021; and
failing to upload evidence of COVID-19 vaccination and complete the additional required collection statement until April 2022 despite being requested to do so on or around 8 October 2021, noting that the Applicant’s home store reopened on 5 November 2021[6].
Ms Preston states that in the 12 month period prior to her dismissal, the Applicant worked a total of 11 shifts totalling 60 hours, the majority of those hours falling in the fortnight 10-23 May 2022 and her last shift prior to dismissal was on 22 June 2022.
The Applicant claims to have worked for more than 60 hours in the twelve months prior to her dismissal but did not provide payslips in support of that claim despite having provided a large number of payslips for the years prior to 2020. She also claimed that the lack of shifts worked by her in the two year period of 2020 & 2021 was attributable to COVID -19 lockdowns, reduced staffing needs of the Respondent and the fact that she was not offered shifts in that period. In respect of the delayed medical clearances for work referred to by Respondent, she claimed to have provided clearances that were misplaced by the Respondent and disagreed that she had failed to provide medical clearances or COVID-19 vaccination documents in a timely manner.
Ms Preston states that the Respondent has a standard “Inactive Casual” process whereby on a quarterly basis the Respondent contacts all casuals who have not worked a shift in the last three months and asks them to update their availability. Casuals who receive such contact are given a one week deadline in which to respond, the failure to do so generally leading to termination of employment[7].
On 6 October 2022, the People & Culture Coordinator Sanya Bucalo wrote to the Applicant as per the above-described “Inactive Casual” process and advised the Applicant of the proposed termination of her employment and sought a response by 13 October 2022[8]. The Applicant failed to respond, which then led to Ms Bucalo sending a follow-up email with an attached letter confirming the Applicant’s termination of employment on 13 October 2022 (the Letter of Termination)[9]. The Letter of Termination relevantly stated as follows;
“…………
You are currently employed as a casual employee with Australian Footwear Pty Ltd. We sent you correspondence on 6 October 2022 to advise that our records indicate that you have not been engaged with the Company since 22 June 2022. We requested you respond to the correspondence with your current availability by 13 October 2022.
As we did not receive a response from you, your employment is deemed to be terminated effective today.
If you remain interested in working for Munro Footwear Group, you are not prevented from reapplying for any current vacancies via the website.
…………..”
On 14 October 2022, the Applicant contacted Isabelle George, who is the Respondent’s HR Administrator, regarding the termination of the Applicant’s employment. In the conversation the Applicant is said to have stated that she first sighted the Letter of Termination that day, she advised that she had been unavailable to work due to caring for her brother who was unwell and expressed a wish to continue working for the Respondent. Ms Preston states that Ms George advised the Applicant that she would discuss potential reinstatement with the Applicant’s Area Manager Hamish Angus[10].
On 21 and 26 October 2022, Ms George attempted to contact the Applicant by phone but was unsuccessful and left voice messages on each occasion according to Ms Preston, who referred to phone records in support of her evidence. Ms Preston states that she was advised by Ms George that the Applicant returned Ms George’s call on 26 October 2022, and during the ensuing conversation Ms George asked the Applicant to provide her hours availability in writing so that the Respondent could better assess her request for reinstatement.
On 28 October 2022, Ms George sent a follow-up email to the Applicant in which she requested the Applicant to respond in writing by 2 November 2022 in relation to her current hours availability so as to assist the Respondent consider her request for reinstatement. The Applicant was advised in Ms George’s email that if she failed to respond by 2 November 2022, the termination processed on 13 October 2022 would stand[11].
On 29 October 2022, the Applicant responded to Ms George’s email of the previous day. In doing so she advised that she was only able to work two days a week and would not be able to work weekends, her limited availability being due to having to care for her ill brother[12].
On 4 November 2022, Ms George responded to the Applicant’s email of 29 October 2022 and advised that after having considered the Applicant’s limited availability and after taking into consideration past instances of her extended absences and restricted availability, the Respondent was not in a position to reinstate the Applicant’s employment. The termination date of 13 October 2022 was confirmed[13]. The Applicant states that she did not see the 4 November 2022 email until 8 November 2022 when she became aware of having been paid her accrued long service leave.
On 9 November 2022, the Applicant contacted Ms George and claimed that the Respondent had failed to give fair consideration to her personal circumstances with regards to her brother’s illness. Ms George transferred the call to Ms Preston, during which subsequent discussion Ms Preston confirmed that the termination of the Applicant’s employment on 13 October 2022 had not been due to the Applicant’s brother’s illness but was due to the Applicant’s current and historical availability[14]. The Applicant agreed that any doubt over her request for reinstatement was removed when Ms Preston confirmed she would not be reinstated and the 13 October 2022 dismissal would stand.
The Applicant gave evidence that the further delay in the filing of her application beyond the 9 November was attributable in part to her caring responsibilities for her brother which involves her spending 4-5 days with him in Seymour where he lives independently with daily support from carers. She also referred to the need to gather payslips to support her unfair dismissal application as a further reason that explained the delay, although it is noted that the substantial number of payslips filed did not accompany her Form F2 but were filed at a later date, that being around 3 January 2023.
As earlier stated, the Respondent has raised two jurisdictional objections, those being that the application was filed outside the statutory 21-day period and that the Applicant’s period of employment failed to satisfy the MEP. I turn firstly to the objection that the application was filed outside the 21-day period.
Application made outside of 21-day time limit
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(2). As the dismissal took effect on 13 October 2022 the period of 21 days ended at midnight on 3 November 2022. The application was therefore filed 15 days outside of the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[15] Exceptional circumstances may 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.[16]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(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;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 3 November 2022. The delay is the period commencing immediately after that time until 18 November 2022, although circumstances arising prior to that day may be relevant to the reason for the delay.[17]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[18] An applicant does not need to provide a reason for the entire period of the delay although the absence of any 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, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[19].
Following her becoming aware of the termination of her employment on 14 October 2022, the Applicant contacted the Respondent that same day, spoke with Ms George and sought reinstatement, which request Ms George agreed to refer for consideration. After a delay of several days during which period attempts were made by Ms George to contact the Applicant by phone, Ms George spoke with the Applicant on 26 October 2022 and advised her that she needed to provide her updated work availability to enable the Respondent to consider her reinstatement request. That request for updated availability was confirmed in writing by Mr George on 28 October 2022 to which the Applicant replied on 29 October 2022. It was not until the 4 November 2022 that the Respondent then responded via email and confirmed that the Applicant would not be reinstated and that the 13 October 2022 termination of her employment would stand. The Applicant states she was not aware of that email until 8 November 2022 but agreed that any doubts as to her reinstatement were dispelled in her telephone conversation with Ms Preston on 9 November 2022.
It is clear that the Applicant immediately sought to be reinstated when she became aware of her dismissal on 14 October 2022. In seeking reinstatement, she advanced reasons why her availability for shifts had been more recently limited, that being due to the illness of her brother who she was caring for. The Respondent agreed on 14 October 2022 to consider the Applicant’s request for reinstatement. There was then a delay until 4 November 2022 when the Respondent confirmed its position on the Applicant’s reinstatement request, that being she would not be reinstated, and the 13 October 2022 dismissal would stand. I am satisfied that the fact that it took until 4 November 2022 for the Respondent to confirm its position on the Applicant’s reinstatement request provides a reasonable explanation for the period of the Applicant’s delay in filing her unfair dismissal application up to 4 November 2022. Up to that date it was reasonable for the Applicant to have believed there was a chance that she would be reinstated. I am satisfied that this provides an acceptable explanation for why the Applicant did not file her application prior to 4 November 2022.
The Applicant claims not to have seen the 4 November 2022 email from Ms George until 8 November 2022 when she noticed she had been paid her accrued long service leave following which she spoke with Ms Preston on 9 November who confirmed the advice contained in the 4 November 2022 email. I find the Applicant’s claim not to have seen the 4 November 2022 email from Ms George as unconvincing in circumstances where she had seen and responded to Ms George’s earlier email dated 28 November 2022.
The Applicant also referred to her caring responsibilities for her brother which she said entailed spending 4-5 days each week at her brother’s residence in Seymour providing support which included taking him to various medical and therapy appointments. She stated that while her brother was living independently, he did have carers who visited him on a daily basis. No medical evidence was led that indicated the Applicant’s caring responsibilities were so onerous as to have prevented her filing her application at an earlier date. She also refers to her efforts to gather payslips to accompany her application as causing further delay. That explanation may be easily disposed of as the payslips were not filed with her Form F2 but were filed several weeks later and therefore could not have delayed the filing of the Form F2.
I am not satisfied that the Applicant has advanced adequate reasons for the delay in filing her application from 4 November 2022 until 18 November 2022, a period of two weeks. As stated above, there was no evidence that the Applicant’s caring responsibilities were so onerous as to have prevented her from filing her application at an earlier date, particularly when she had been able to engage with the Respondent over her request for reinstatement. The issue of gathering payslips is similarly rejected for the reasons outlined above. I am not satisfied that the Applicant has provided an acceptable reason for the filing delay from 4 November to 18 November 2022.
I have found that the Applicant has provided an acceptable reason for the delay in the filing of her application up until 4 November 2022. While it is not necessary for the Applicant to provide an explanation for the entire period of the delay, that being the 15 days the application was filed beyond the 21-day period, she has failed to provide an adequate explanation for the two week period beyond the 4 November 2022. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find, that the Applicant’s employment ceased on 13 October 2022. However, having regard to the Applicant’s unchallenged evidence that she did not become aware of her dismissal until 14 October 202, it is apparent that she therefore had the benefit of a period of 20 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
As stated above, the Applicant sought reinstatement following the termination of her employment. In the circumstances of this case, I regard that request as action taken by the Applicant to dispute the dismissal. My view on that is supported by the fact that the Respondent agreed to consider the reinstatement request. That request for reinstatement was not finalised and confirmed, in the negative, until 4 November 2022. This weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer
The application was filed 15 days outside of the 21-day period. While such a delay is not insignificant, there is no material before me to suggest that such delay would cause significant prejudice to the employer. This factor weighs neutrally in my consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time.
The Applicant refers to her lengthy period of casual employment with the Respondent and its predecessor company. She further states that up until the COVID-19 pandemic she had been a dependable employee, had worked any shift she was requested to, often at short notice. Against that history of employment, she claimed the decision to terminate her employment was unfair in circumstances where she had more recently been impacted by caring responsibilities in respect of her brother. For its part, the Respondent states there was a valid reason for the Applicant’s dismissal related to her availability for work, which is best seen in the fact she only worked 60 hours over the last twelve months of her employment and no shifts between 22 June 2022 and her dismissal on 13 October 2022.
It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. Having reached this conclusion, it is unnecessary for me to deal with the Respondent’s second jurisdictional objection that the Applicant’s period of employment did not meet the MEP.
An Order giving effect to my decision will be separately issued with this decision.
DEPUTY PRESIDENT
Appearances:
P Gutterson, Applicant.
P Preston for the Respondent.
Hearing details:
2023.
Melbourne:
February 17.
[1] Exhibit R1, Witness Statement of Phillipa Preston
[2] Ibid, Attachment PP-4, Contract of Employment
[3] Exhibit R1
[4] Ibid
[5] Ibid, Attachment PP-12, Email chain regarding medical clearance for shoulder injury
[6] Exhibit R1
[7] Ibid
[8] Ibid, Attachment PP-1, Letter to Applicant titled “Re: Proposal to Terminate Casual Employment”
[9] Exhibit R1, Attachment PP-2, Letter of Termination dated 13 October 2022
[10] Exhibit R1
[11] Ibid, Attachment PP-3, Email re “Employment with MFG”, dated 28 October 2022
[12] Exhibit R1, Attachment PP-3 Email re “Employment with MFG”, dated 29 October 2022
[13] Exhibit R1, Attachment PP-3, Email re “Employment with MFG”, dated 4 November 2022
[14] Exhibit R1
[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[16] Ibid.
[17] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[19] Ibid at [40].
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