Shanie Melbourne v Berry Street Victoria Incorporated

[2024] FWC 1851

[2024] FWC 1851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Shanie Melbourne

v

Berry Street Victoria Incorporated

(C2024/3500)

COMMISSIONER LEE MELBOURNE, 16 JULY 2024

Application to deal with contraventions involving dismissal

Introduction

1. This is an edited version of my decision delivered ex tempore and recorded in transcript on 8 July 2024. I refused to grant an extension of time and issued an order[1] to that effect on 8 July 2024.

1. This is an application made pursuant to section 365 for a general protections application.  It's been made by Ms Melbourne, the Applicant, herein after referred to as the Applicant.  It's been made pursuant to section 365 of the Act.  It's a general protections application involving dismissal.  The application was made on 28 May 2024.

Application was filed outside the statutory timeframe

1. In her application, the Applicant stated her effective dismissal date was 7 May 2024.  The application was lodged on 28 May 2024.  If the dismissal was effective on 7 May 2024, the application was made in time.  However, the Respondent raised a jurisdictional objection that the application was out of time as the dismissal took effect on 30 April.  Therefore, the application was seven days out of time.

1. In support of that proposition, the Respondent provided copies of correspondence sent to the Applicant on 27 April 2024.  That correspondence is headed 'Confirmation of Cessation of Employment' and includes the following paragraph as well as explaining the reasons for the cessation of employment, sets out, 'As such, this memo serves to formally provide notice that your role and casual employment with Berry Street will cease at conclusion of any rostered shift on 30 April 2024'.  That letter was dated 27 April 2024.

1. The Respondent also provided an email that was sent in response to that correspondence by the Applicant. That email was sent on April 29 from the Applicant to Stephanie Joseph of the employer and reads as follows: 'Hello.  Is this a letter written to me and my situation or one sent to all?'  A response is sent to that on the same day by Stephanie Joseph which says, 'Hi, Shanie.  Yes.  That's correct.  All our casual staff in Bairnsdale received this letter'.

1. Based on that email exchange, it's apparent that the Applicant received the email 27 April 2024. The email in clear terms indicated her employment ceased on 30 April.  Therefore, having regard to the apparent disputed date of the dismissal and its consequences as to whether the application was lodged in time, I listed the matter for a mention hearing on 28 June 2024.  The Respondent attended that hearing.  The Applicant did not attend and was uncontactable.  Directions were set for the Applicant to file materials relevant to considerations under section 366(2).

1. The Applicant did not file any materials and did not contact my chambers.  The Applicant was advised of today's hearing and has not attended.  My associate made endeavours this morning to contact the Applicant which were unsuccessful.  The Applicant is on notice by virtue of the directions that were issued on 28 June that if she did not contact my chambers or file materials or deal with this matter in any way, the application would likely be dismissed.

1. Now, having regard to the evidence been filed by the Respondent to which I've just made reference, it's clear the Applicant was made aware at least by 29 April that her employment was to cease on 30 April 2024.  A letter of termination makes that clear that her employment ended that day.  I'm satisfied the Applicant's dismissal took effect on 30 April 2024.  Therefore, the application was lodged seven days outside of the statutory period.

1. The Applicant hasn't filed any material in response to the directions in respect to this matter at all.  In the circumstances, I have considered nevertheless whether to grant an extension of time taking into account the factors in section 366(2).

Reason for the delay

1. Firstly, dealing with the reason for the delay, there is no evidence as to a reason for the delay.  That is a matter that weighs against the Applicant.  

Action taken by the Applicant to dispute her dismissal

1. There's no evidence of action taken to dispute the dismissal.  That is a matter that weighs against the Applicant. 

Prejudice

1. I'm satisfied that there's no prejudice, and that's a neutral consideration. 

Merits of the application

1. As to the merits of the application, the Applicant in her F8 complains of being assaulted at work and not supported, and that in essence that she was dismissed due to the complaints and issues raised connected with that.  There's also a reference to the Applicant's poor mental state.

1. The Respondent denies it's contravened the general protections provisions of the Fair Work Act. The Respondent submits that they supported the Applicant in respect to concerns she raised and that the reason for dismissal was related to the fact that Berry Street were no longer operating the houses that she was working at and there was no further work for any staff in those houses on 30 April 2024.

1. The Applicant has an apparent case, and the Respondent has an apparent defence.  Overall, the merits are a neutral consideration.

Fairness as between the Applicant and other persons in a similar position

1. As to fairness between the person and other persons in a like position.  No submissions were made by any party on that matter.

Conclusion

1. In the circumstances, my findings are these.  A person who seeks relief from a general protections application involving dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission would consider whether to allow a further period. Weighing all the matters I must weigh and take into account the matters set out in section 366(2) of the Act, I'm not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period.

1. As I've indicated, I'm not satisfied there is an acceptable reason for the delay.  That factor weighs against the Applicant.  All other factors are neutral considerations.  There are no factors weighing in favour of the Applicant.  In those circumstances, as I've indicated, I'm not satisfied that there are exceptional circumstances, and, therefore, there was no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application.  An extension of time is, therefore, refused, and the application to deal with a general protections dispute made by the Applicant is dismissed.  An order[2] to that effect will be issued separately. 

1. That concludes the decision.

COMMISSIONER

Appearances:

Ms Kristina Johnson for the Respondent.

Ms Kellie Johnson for the Respondent.

Hearing details:

8 July 2024.
Microsoft Teams.

[1] PR776771.

[2] Ibid.

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