Renee Hawkes v Quinns Shack Group

[2021] FWC 2613

[2021] FWC 2613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Renee Hawkes
v
Quinns Shack Group
(C2021/75)

COMMISSIONER YILMAZ MELBOURNE, 10 MAY 2021

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time denied.

[1] Quinns Shack Group (Quinns) is a small cafe and employed the Applicant, Ms Hawkes, as a part-time senior kitchen hand on 17 August 2020. Ms Hawkes was dismissed on 8 December 2020.

[2] I scheduled the extension of time hearing for 31 March 2021. Both parties were self-represented.

[3] Section 366(1) of the Fair Work Act 2009 (the Act) requires that an application under s.365 be made within 21 days after the dismissal takes effect, or in such further time as the Commission may allow.

Applicant’s submissions

[4] Ms Hawkes submits the delay in filing the general protections application is due to filing the wrong form, and after this was brought to her attention she completed and filed the correct form. She also submits that the Christmas closedown period contributed to the delay.

[5] Ms Hawkes submits that she was informed her termination of employment was due to her defaming the business and owner, resulting in damage to the reputation of the business and of the owner, and refusal to follow a lawful and reasonable direction.

[6] Ms Hawkes submits that she was unfairly dismissed because she inquired into her pay, more particularly the payment of JobKeeper. Ms Hawkes submitted copies of emails between herself and Quinns which demonstrated that she assumed JobKeeper was a payment in addition to wages earned during the course of employment.

[7] Ms Hawkes submits that Quinns contravened s. 340 of the Act - protection of workplace rights.

Respondent’s submissions

[8] Quinns submit that Ms Hawkes was employed as a part-time working 20 hours per week senior kitchen hand that required her to work shifts during the week and on the weekend. Soon after employment Ms Hawkes advised Quinns of an operation which would render her unavailable for a couple of weeks. Quinns submit the absence from work was in fact 5 weeks. Quinns states that while there was an expectation that Ms Hawkes would work on weekends, she did not do so. Quinns submits that Ms Hawkes did enquire into how the JobKeeper payment applied and it responded accordingly. The email evidence submitted by Ms Hawkes post hearing confirms her confusion and assumption that JobKeeper was an additional benefit to weekly wages. The emails show the effort taken by Quinns to clarify her misunderstanding. However, the emails do show that Ms Hawkes escalated her queries to a threat of legal action if her pay was not corrected. Quinns submit this conduct escalated to the point where Ms Hawkes comments to staff were damaging to the business and to the owner personally and this resulted in her dismissal for gross misconduct. Ms Hawkes was summarily dismissed on 8 December 2021.

Consideration

[9] The application was filed in the Commission on 6 January 2021. This means the application is 8 days late.

[10] General protections applications involving dismissal must be made within 21 days of termination.

[11] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[12] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 1 where it was held that:

“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 2

[13] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[14] The general protections involving dismissal application was lodged with the Commission on 6 January 2021, 8 days late.

[15] Ms Hawkes submits that she filed the wrong form and was told by “Fair Works” to withdraw the form and file a new form. Ms Hawkes also contends that the delay is contributed by the Christmas closedown period.

[16] The application filed by Ms Hawkes on 21 December 2020 was a s.773 application to deal with an unlawful termination dispute, and it was withdrawn on 22 December 2020. The Commission’s file note confirms Ms Hawkes’ submission that a discussion with the Commission took place regarding the filing of the correct form. The Commission’s file note provides that an explanation of the different forms was given, and the correct form sent through on 22 December 2020. The file note also confirms that Ms Hawkes was advised of the 21-day time limit from the date of her termination of employment. Among the various email correspondences, Ms Hawkes submitted post hearing, there was an email from the Perth Registry of the Commission sent to Ms Hawkes on 22 December 2020 containing information on general protections involving dismissal applications.

[17] Ms Hawkes provided no explanation for the delay from 22 December 2020 until 6 January 2021 when her application was filed.

[18] Consequently, I cannot find this consideration to weigh in Ms Hawkes’ favour.

Steps taken to dispute the termination

[19] Ms Hawkes states that she disputed the termination of employment but provided no supporting evidence.

[20] Quinns submits that Ms Hawkes contacted the business threatening legal action and made claims which Quinns state were confirmed otherwise. 3

[21] As Ms Hawkes did challenge her dismissal with Quinns, I find this consideration to weigh in her favour.

Prejudice to the employer

[22] Ms Hawkes does not address this consideration in her extension of time application.

[23] Quinns states that the lateness of the application has had the effect of misusing the limited resources of the business and has had the effect of disrupting business.

[24] While I accept the nature of disruption described by Quinns may have had the effect of causing disadvantage, I do not accept that the lateness of the application has prejudiced the employer. However, the absence of prejudice does not mean that this consideration weighs in Ms Hawkes’ favour, therefore this consideration is neutral.

Merits of the application

[25] Ms Hawkes contends that her employment was terminated after she complained that she had not been paid correctly her JobKeeper entitlement. She disputes that she slandered or defamed the business or the owner. The email exchange commences with questions seeking clarity but does escalate to threats of legal action by Ms Hawkes.

[26] Quinns submits that Ms Hawkes was terminated due to misconduct and this was confirmed in the letter of termination emailed to her on 8 December 2020. Quinns submits that this misconduct relates to comments made by Ms Hawkes to employees which Quinns say had the effect of defaming and damaging the business and reputation of the owner. It disputes that Ms Hawkes’ employment was terminated due to any inquiry, dispute or disagreement over wages. The email correspondence tendered by Ms Hawkes from Quinns states that they are acting on advice from their accountant and should Ms Hawkes provide further information which on the accountant’s review finds an underpayment that it would be corrected. The emails do not disclose any further information provided by Ms Hawkes to enable the review of her wages. The emails simply disclose that Ms Hawkes forwarded extracts from government websites and her direct emailed questions were answered.

[27] Quinns contends that should the matter require consideration of merit, that past and current employees who were witness to the behaviour which led to Ms Hawkes’ termination of employment would be made available. 4 Quinns also disputes Ms Hawkes’ submissions that she complied with the production of medical certificates and the completion of training for which Quinns paid as a condition inherent to the role of kitchen hand.

[28] While merit is a consideration, contested evidence is not to be tested in an extension of time application, and where an application appears to be highly meritorious, it is relevant to the discretion of the decision maker. 5 Based on the evidence and submissions, I have formed the preliminary view that this application is not strong on merit.

[29] The merit will turn on contested matters, even so, Ms Hawkes has failed to substantiate that the application is not entirely without merit. I find at best, that this consideration is neutral.

[30] While I have considered the limited material on the merit, during the hearing Ms Hawkes made comment that she understood that JobKeeper worked as a minimum wage guarantee. From those comments it is not entirely clear whether Ms Hawkes had identified genuine concerns about whether her wages met the guarantee. In any event, such matters can be pursued by Ms Hawkes through the Fair Work Ombudsman.

Fairness between the person and other persons in a like position

[31] Neither party addressed this consideration therefore I find this consideration neutral.

Conclusion

[32] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. The bar is high for an extension of time and having considered each of the factors set out in s.366(2) of the Act, on balance I do not find there to be exceptional circumstances warranting an extension of time. Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Ms R. Hawkes for herself

Ms R. Mason for the Respondent

Hearing details:

2021
Melbourne (by telephone)
31 March and 9 April

Printed by authority of the Commonwealth Government Printer

<PR729659>

 1   [2011] FWAFB 975.

 2 Ibid at [13].

 3   Respondent’s outline of submissions at Q1g.

 4   Respondent’s outline of submissions at Q1f.

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 and Haining v Deputy President Drake (1998) 87 FCR 248, 250.