Shae Wigley v Eyrie Holdings Pty Ltd T/A McDonald's Treendale
[2024] FWC 1387
•28 MAY 2024
| [2024] FWC 1387 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shae Wigley
v
Eyrie Holdings Pty Ltd T/A McDonald’s Treendale
(U2024/3478)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 28 MAY 2024 |
Application for an unfair dismissal remedy – extension of time
The issue and outcome
On 26 March 2024, Shae Wigley (the Applicant) applied for an unfair dismissal remedy having been dismissed from Eyrie Holdings Pty Ltd T/A McDonald’s Treendale (the Respondent) on 30 January 2024. The Respondent objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The application had been made 35 days outside of that statutory period. This decision deals with that objection.
It is noted that the Respondent identified that it was incorrectly named on the Form F2, as ‘The trustee for Eyrie Family Trust’. The Respondent clarified that the legal entity that employed the Applicant was Eyrie Holdings Pty Ltd T/A McDonald’s Treendale. With the consent of the parties, I permitted an amendment to the Form F2, such as to correctly identify the Respondent to the unfair dismissal application.
Section 396 of the Act provides that the Fair Work Commission (the Commission) must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three preliminary matters are not presently relevant.
It is not contested that the unfair dismissal application was made out of time. For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.
The Applicant contends that the circumstances are exceptional based on her having to seek further explanation and information from her employer, presumedly about her dismissal, and, in addition, she had mental health issues which impacted upon her ability to think clearly about what happened.
The matter proceeded to hearing and at the start of the hearing, I informed the parties that the issue to be determined was whether the Applicant’s circumstances are exceptional, and whether it is fair and equitable for an extension of time to be granted. The parties were directed to address the factors in s 394(3) of the Act. The Applicant was provided the opportunity to provide viva voce evidence with a view to addressing the factors in s 394(3). However, the viva voce evidence of the Applicant and the Respondent focused on the reasons for dismissal rather than those factors in s 394(3) of the Act.
Shortly stated, when I consider all the evidence in this case and the matters that I am obliged to take into account individually and collectively, I am not satisfied exceptional circumstances exist. As detailed in my reasons that follow, the Applicant has, in my view, not provided plausible reason for the delay and the other factors I am obliged to take into account under s 394(3) of the Act, do not lead to a finding of exceptional circumstances. This is the case notwithstanding that the Applicant disputed her dismissal before making her unfair dismissal application. As a consequence, I do not need to consider whether I should exercise my discretion. However, were it necessary to do so, based on the findings that follow, I am not persuaded it is fair and equitable that time should be extended. Accordingly, I decline to grant the Applicant an extension of time and therefore her application for an unfair dismissal remedy must be dismissed. An Order[1] to that effect issues concurrently.
Background
The broader context giving rise to the dispute has been gleaned from the materials tendered into evidence and the Applicant’s viva voce evidence at hearing.
Whilst the Applicant commenced employment with the Respondent in the role of a full-time Shift Manager on 4 December 2023,[2] it is apparent that the Applicant held the role of Crew Member prior to her promotion to the Shift Manager role.[3]
During the course of her employment with the Respondent it was alleged that on:
a) 26 January 2024, the Applicant presented to work wearing incorrect footwear, false nails, and facial piercings contrary to requirements under the workplace safety and appearance policy; and on
b) 27 January 2024, the Applicant failed to present for her shift which was scheduled for 1330hrs – 2200hrs.[4]
According to the Respondent, it had met with the Applicant on 8 January 2024 to discuss her ‘high level of promo transactions and manager meals’ that had occurred on her shift on 5 January 2024.
The Respondent submitted that prior to terminating the Applicant’s employment, the Respondent suspended the Applicant with pay, and then, had provided her with the opportunity to meet with the Respondent, accompanied by a support person.[5] The Respondent stated that the Applicant attended the disciplinary meeting absent a support person, and she did not demonstrate remorse in respect of her actions.[6]
The Respondent terminated the Applicant’s employment for serious misconduct on 30 January 2024, having not been satisfied with the Applicant’s responses to the allegations. Namely, in respect of her conduct on 26 January 2024, she had left her shoes at a house where she was house sitting and could not buy new shoes, and regarding her conduct on 27 January 2024, she thought she had an overnight shift.
By letter of 24 February 2024, the Applicant wrote to the Respondent to formally complain about the decision to terminate her employment and to emphasise her belief that dismissal on the basis of serious misconduct was unjust and unfair.[7] The Applicant detailed fulsome responses to the allegations that she had engaged in misconduct on 8 January 2024, 26 January 2024 and 27 January 2024.[8] The Applicant further highlighted that she was an 18-year old Crew Member who had been trained in a management position only a few weeks prior, and therefore had only held the management position for a short period and was still learning. In addition, the Applicant outlined issues about having been underpaid and having suffered an injury in or around November 2023.[9]
By email dated 4 March 2024, the Applicant wrote to the Respondent, again seeking clarification on how her dismissal could be premised on serious misconduct.[10] The Applicant articulated her thoughts on why she had been dismissed and requested rosters and payslips for 2023 and 2024.[11]
Consideration
There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[12]
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.[13] Whilst Nulty considered the general protections provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[14] 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 can be considered exceptional.[15]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[16]
3.1 Reasons for the delay in filing the application
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[17] 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.[18]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[19] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[20]
The Applicant pressed that the reason for the delay in making her application was twofold. First, she sought further explanation and information from the Respondent. Second, her ability to think clearly was impacted upon by her mental health issues.
Turning to the latter reason first, it is accepted that an applicant’s medical condition can be so significant that it affects their mental capacity to prepare and file an application with the Commission. However, much may turn on the evidence adduced to support such proposition. In Underwood v Terra Firma Pty Ltd,[21] the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days. The Full Bench affirmed the findings that the medical evidence relied upon ‘did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame’ and that no exceptional circumstances were established.[22]
The Applicant’s submissions referred to her having been afflicted by a mental health condition. Attachment One to the Applicant’s Document List is a medical certificate dated 26 March 2024. The medical certificate from a Dr Candice Simpson sets out that the Applicant presented to the medical centre on 4 January 2024, but her symptoms had been occurring for at least six months prior to that attendance. Dr Simpson added that the Applicant had been attending the centre fortnightly and that there had been significant fluctuations in the Applicant’s mental wellbeing, which had significantly impacted on her ability to work.[23]
The medical certificate was dated that same date on which the Applicant made her application. The medical certificate is addressed to ‘To Whom It May Concern’. It is therefore reasonable to infer that the Applicant intentionally sought a medical certificate from a general practitioner to, in part, provide reason for the delay in filing her application – the delay period pre-dating the medical certificate. It is evident that the medical certificate is not contemporaneous with the period of the delay (21 February 2024 until 25 March 2024), albeit it appears that the general practitioner had been treating the Applicant during the delay period. However, whilst the medical certificate referred to significant fluctuations in the Applicant’s mental health, it is simply unknown when precisely these fluctuations occurred which impacted upon the Applicant’s ability to work. Furthermore, an ‘ability to work’ or a detrimental impact upon the same, does not necessarily mean that the Applicant was unable to complete an unfair dismissal application.
In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[24] In this case, there is no clear medical evidence showing incapacity at a particular time or times, and the Applicant’s conduct does not demonstrate an incapacity to grapple with her ‘surprising’ and ‘disappointing’ dismissal. For example, it is evident that the Applicant was not so incapacitated that she was unable to correspond with the Respondent cogently and comprehensively regarding her dismissal.
Some four days after her unfair dismissal application was due to be lodged (in accordance with the statutory timeframe), the Applicant was able to write to the Respondent about the termination of her employment – in this respect I refer to the Applicant’s letter of 24 February 2024. The letter of 24 February 2024 was comprehensive. It responded to the allegations advanced against the Applicant in the disciplinary process, detailed mitigating factors the Applicant considered relevant, highlighted what the Applicant clearly considered were relevant points about her dismissal, and requested an immediate response. The Applicant further wrote to the Respondent by email dated 4 March 2024, again seeking an explanation for her dismissal, which had been premised on serious misconduct, and requesting payslips and rosters.
In respect of the Applicant’s email to the Respondent dated 4 March 2024, the Applicant had referred to completing ‘travel reimbursement forms…soon’ and that her mental health was her priority and she would get them done when she was well enough. However, in that same email, the Applicant stipulated that the Respondent was to respond to her email by 8 March 2024. It is therefore reasonable to infer that the Applicant was sufficiently able to contend or deal with those responses of the Respondent in that timeframe, despite foreshadowing a potential delay in forwarding reimbursement forms. I am therefore not persuaded that the Applicant’s medical condition contributed to the delay, for the abovementioned reasons.
The other reason relied upon by the Applicant is unconvincing. While the Applicant may have sought clarification as to why she was dismissed on the basis of serious misconduct and considered that both the basis and the dismissal itself were unjust (as detailed in her letter of 24 February 2024), the seeking of clarification about the basis of her dismissal, did not preclude the Applicant from making her application within the statutory period.
In my view, the reasons when considered together are insufficient to explain part of, or the entirety of, the 35-day delay. These findings in culmination weigh against a finding of exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21-day period.
3.2 Whether the Applicant became aware of the dismissal after it took effect
At all material times, from the time the Applicant was dismissed until the date the unfair dismissal application was made, the Applicant knew she had been dismissed as of 30 January 2024. I consider this to be a neutral factor.
3.3 Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[25] I have considered all the evidence in this respect, including the Applicant’s correspondence of 24 February 2024 and 4 March 2024.
The Applicant took steps to dispute the dismissal after it took effect and prior to the time she made her unfair dismissal application.
Having considered the evidence and submissions of the Applicant and Respondent, I consider this factor weighs in favour of there being exceptional circumstances.
3.4 Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted. I therefore consider this to be a neutral factor in the present case.
3.5 Merits of the application
The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2), and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.
In Telstra-Network Technology Group v Kornicki,[26] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:
If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[27]
Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge her application.[28] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded.
It is apparent from the materials of the Applicant and the Respondent that there is a dispute as to whether the disciplinary action taken was proportional to the conduct engaged in, noting also that the Applicant adjures mitigating circumstances should have been considered prior to the Respondent having dismissed her. This dispute would warrant further exploration at hearing and the making of findings. However, I am satisfied that it cannot be said that the unfair dismissal application is ‘without merit’ and as such I consider this criterion to be neutral.
3.6 Fairness between the person and other persons in a similar position
The Deputy President in Morphett v Pearcedale Egg Farm considered this criterion and said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[29]
Having considered the materials field, I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is not a relevant consideration in the circumstances of this particular matter, and is therefore a neutral factor in determining whether to grant an extension of time.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
Based on the evidence before me, the Applicant has not provided a satisfactory explanation for the whole period of the delay in making her application. The remaining matters I need to consider are otherwise neutral albeit one weighs in favour of there being exceptional circumstances – such that the Applicant disputed her dismissal prior to making her unfair dismissal application. However, having considered the submissions and evidence, I am unconvinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, and given my finding that the circumstances are not exceptional, I am not satisfied that it is fair and equitable to grant the extension.
The application was made outside the time limit imposed by the Act, and therefore, is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Shae Wigley, the Applicant
Joseph Viola-Tiongson of the Respondent
Hearing details:
2024
Perth (by telephone):
21 May.
[1] PR775401.
[2] Digital Hearing Book, 30 (DHB).
[3] Ibid 27.
[4] Ibid 39.
[5] Respondent’s Outline of Submissions, 57.
[6] Ibid.
[7] DHB (n 2) 26.
[8] Ibid 27.
[9] Ibid.
[10] Ibid 29.
[11] Ibid.
[12] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [21].
[13] (2011) 203 IR 1, 6 [15].
[14] Ibid 5 [13].
[15] Ibid 5–6 [13].
[16] (2018) 273 IR 156, 165 [38] (emphasis in original).
[17] Ibid 165 [39].
[18] Ibid.
[19] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[20] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12] (Shaw).
[21] [2015] FWCFB 3435.
[22] Ibid [16].
[23] DHB (n 2) 25.
[24] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.
[25] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300.
[26] (1997) 140 IR 1.
[27] Ibid.
[28] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[29] [2015] FWC 8885, [29].
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