Roslyn Hutton v Forrest Marketing Group
[2020] FWC 3115
•15 JUNE 2020
| [2020] FWC 3115 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Roslyn Hutton
v
Forrest Marketing Group
(U2020/6136)
DEPUTY PRESIDENT DEAN | SYDNEY, 15 JUNE 2020 |
Unfair dismissal application – effective date of dismissal - extension of time - application dismissed.
[1] This decision concerns an application by Roslyn Hutton (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. The Applicant had been employed by Forrest Marketing Group (the Respondent) as a casual employee. The relief sought by the Applicant was “Payment of JobKeeper as I am eligible. Continued employment with FMG”.
[2] The application was listed for hearing on 10 June 2020 to determine two matters. The first matter was the effective date of dismissal. The Applicant claims that her dismissal took effect on 28 April 2020 when she received an email from the Respondent stating her employment had been terminated effective 25 March 2020, being her last day she performed work. The Respondent contends that the Applicant’s casual employment ended on 25 March 2020, having advised her some two weeks’ earlier to look for alternative employment and go to Centrelink to register for JobSeeker, as the business had been significantly affected by COVID-19 and there were no more shifts available for the Applicant. Subject to the date the dismissal took effect, the second matter for determination is whether her application was lodged within the statutory time limit, and if not, whether an extension of time should be granted.
[3] At the hearing, the Applicant appeared on her own behalf. Ms C Wilson, the Respondent’s Commercial Manager, appeared for the Respondent.
When did the dismissal take effect?
[4] A dismissal takes effect when it is communicated to the employee who is being dismissed,1 and can be communicated orally.2
[5] The term ‘dismissed’ for the purposes of the unfair dismissal jurisdiction is defined in s.386 of the Act. Section 386 provides that a person is dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative, or the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.3
[6] A termination at the initiative of the employer involves some action of the employer that is intended to bring the employment relationship to an end, or had that probable result.4
The case for the Applicant
[7] The Applicant gave evidence that the last shift she worked was on 25 March 2020. She gave evidence that she knew the loss of work was due to a downturn in the business caused by COVID19 and subsequent loss of work from clients. She says that on that date, “I was advised of no more shifts being available at this time due to the current situation”.
[8] She gave evidence that she had a series of email exchanges with Ms Wilson on and from 23 April 2020 in response to her request to receive the JobKeeper payment. She says she was not advised her employment had been terminated until 28 April 2020.
[9] The Applicant contends that the reason for her dismissal was due to her enquiries regarding the JobKeeper payment.
[10] The Applicant gave evidence that she was employed as a long term casual employee for six years on a regular and systematic basis. She said she worked 20-24 hours per week on the same shifts Monday and Thursday for 8 hours and Tuesday and Wednesday for four hours from 1-5pm. She gave evidence that as a casual there were times when work was unavailable due to a downturn in business. She also took approved leave from time to time over those six years.
[11] The Applicant also relied on a statement from Mr Chris Justice, a former Call Centre Manager with the Respondent, who had been the Applicant’s manager. Mr Justice was not required for cross examination. It was the evidence of Mr Justice that during the week commencing 16 March 2020, he advised all staff that due to COVID-19, the Respondent was experiencing a downturn in business. He encouraged all staff to “start the process of applying for Centrelink, or securing alternative casual work, as it looked likely FMG would experience a significant downturn”. This message was reinforced the following week, and included that there was limited work available, and it was likely that there would be no shifts available for many staff. He stated that this did not reflect on anyone’s performance in their role, as the lack of shifts was solely due to the downturn resulting from COVID-19.
[12] Mr Justice’s statement also said that he did not advise the Applicant that her employment was ‘terminated’.
The case for the Respondent
[13] Ms Wilson, the Respondent’s Commercial Manager, gave evidence that she was responsible for human resources, finance, payroll, legal and marketing.
[14] She says that on 24 March 2020 she was made aware of the list of casual employees for whom the Respondent did not have work available for the foreseeable future as the campaigns they worked on had been cancelled as a result of COVID-19. The Applicant was on that list.
[15] Because she was responsible for processing payroll, she was aware that the Applicant had not been rostered to work since the last payroll period she was paid, the fortnight ending 27 March 2020, with her last paid shift being 25 March 2020.
[16] She gave evidence that the Applicant did not contact her with any concerns in the week leading up to 27 March 2020 that there would be no shifts available for the foreseeable future.
[17] On 23 April 2020, Ms Wilson said that she received the first contact from the Applicant, in the form of an email enquiring about the Respondent’s eligibility for the Jobkeeper payment. A subsequent email exchange followed regarding eligibility for JobKeeper.
[18] On 28 April 2020, the Applicant emailed her again requesting to be nominated for the Jobkeeper payment. After receiving this email, Ms Wilson says she contacted Business Australia to get legal advice regarding the Respondent’s obligation to nominate employees for the Jobkeeper program. She says she was advised by a lawyer that the Respondent was under no obligation to rehire employees who had not worked for it for over one month.
[19] On 28 April 2020, she responded to the Applicant saying she wasn’t eligible to be nominated for Jobkeeper as she wasn’t currently employed, and reiterated the Respondent’s recommendation given before 27 March 2020 to apply for Jobseeker.
[20] A witness statement was also provided by Ms Dyan Down, the Respondent’s Business Support Manager. She was not required for cross examination.
[21] Ms Down’s statement said she was responsible for monitoring their client’s campaign hours, liaising with agents (ie their employees) and managing their availability, including approval of time off requests and shift swapping, rostering agents on campaigns and disseminating the rostered shifts to agents. In addition to this she was responsible for alerting the Call Centre Team Leader when there were no shifts available for casual employees.
[22] On 24 March 2020 she notified Mr Justice that there were no shifts available for a number of casual agents. The Applicant was on that list.
[23] Over the 2 day period of 25 and 26 March 2020, Ms Down stated that Mr Justice spoke to all of the agents on Ms Down’s list, including the Applicant, notifying her that there were no shifts available in the foreseeable future due to the impact of COVID-19 on the business.
[24] On 26 March 2020 Mr Justice emailed Ms Down to say that the Applicant did not attend for her shift that day. The Applicant was scheduled for an 8 hour shift. The email said: “I think she thought she was done yesterday”, which Ms Down understood to mean that the Applicant thought her last shift was the 25 March 2020.
[25] On 25 March 2020 the Applicant worked her last rostered shift, as she did not attend on 26 March 2020, and was not allocated or rostered on any more shifts.
[26] Ms Down said that the Respondent’s casual employees normally contacted her if they had any questions about their rostered shifts, their availability or when shifts were next available. She said she had not received any correspondence or communication from the Applicant either by phone, in person or by email, asking about future shifts or questioning why she had not been allocated any shifts on the roster since working her last shift 25 March 2020.
[27] In cross examination, the Applicant acknowledged that she had been advised prior to 27 March 2020 to apply for the JobSeeker payment.
Effective date of dismissal
[28] Having considered the evidence and submissions before me, I find that the employment relationship ended on 25 March 2020 for the following reasons:
• The Applicant’s evidence confirms she was advised there would be no further shifts in the foreseeable future after 27 March 2020. She acknowledged the Respondent’s advice to her that she should seek alternative work or apply for unemployment benefits at Centrelink (i.e. JobSeeker);
• She knew not to attend work after her last shift on 25 March 2020, despite her evidence that she was employed on a regular and systematic basis;
• The email enquiry on 23 April 2022 to Ms Wilson was not to ascertain when further work would be available but only to request the JobKeeper payment, which had been announced after her last shift was worked;
• While the word ‘terminate’ may not have been used in discussions with the Applicant prior to her last shift, it is clear in my view that the Applicant was advised that there were no further shifts available for her and that she should seek alternative employment or Centrelink benefits. I am satisfied that this constituted action by the Respondent that was intended to bring the employment relationship to an end, or had that probable result.
[29] It follows and I find that the effective date of dismissal was 25 March 2020. As the application was filed on 5 May 2020, her application has not been made within the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether the Applicant should be granted an extension of time.
Extension of time
[30] 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. 5 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.6
[31] 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.
[32] 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 consider these matters in the context of the Application.
Reason for the delay
[33] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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. 7
[34] The Applicant contended that her application was not late because she did not become aware of it until 28 April 2020. For the reasons set out earlier, I do not accept that the dismissal took effect on this date. There were no other reasons as to the delay advanced by the Applicant. This weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[35] The Applicant gave evidence that she did not become aware of the dismissal until 28 April 2020. While I do not accept this for the reasons outlined above, I will treat this as a neutral consideration.
Action taken to dispute the dismissal
[36] Other than making this application, the Applicant did not take any other steps that would constitute ‘action to dispute the dismissal’. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
[37] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[38] The Act requires me to take into account the merits of the application in considering whether to extend time.
[39] In this case, the Respondent contends that the dismissal was due to a significant downturn in business resulting from COVID-19. The Applicant contended that the dismissal was harsh because she was not advised in writing of her dismissal, and because a downturn due to COVID-19 was not, in her opinion, a valid reason for her dismissal.
[40] It appears on the materials that the Respondent has a reasonable explanation for the Applicant’s dismissal. In the circumstances, I consider that the Applicant does not have a strong case. Consequently, this is a matter that weighs against a conclusion that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
[41] 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.
[42] In the present case, the Applicant said that another employee in similar circumstances had also been dismissed, and to this end I note that that employee has also made an application for an unfair dismissal remedy. The Applicant contented that they had both been unfairly dismissed. Overall, I consider this to be a neutral consideration in the present matter.
Conclusion
[43] 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, I am not satisfied that there are exceptional circumstances. In my view, there are no 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). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
R Hutton on her own behalf.
C Wilson for Forrest Marketing Group.
Hearing details:
2020.
Sydney (by telephone):
June 10.
Printed by authority of the Commonwealth Government Printer
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1 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, 21 November 2000) print T3496.
2 Plaksa v Rail Corporation NSW[2007] AIRC 333.
3 Section 386 of the Act.
4 Searle v Moly Mines Limited [2008] AIRCFB 1088 at para 2.
5 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
6 Ibid.
7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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