Shelley-Anne Dunbar v Palm Lake Resort Pty Ltd

[2021] FWC 5296

[2021] FWC 5296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 – Unfair dismissal

Shelley-Anne Dunbar
v
Palm Lake Resort Pty Ltd
(U2021/5193)

DEPUTY PRESIDENT LAKE BRISBANE, 26 AUGUST 2021

Application for an unfair dismissal remedy – whether Applicant had been dismissed – Applicant had not been dismissed – application made outside of statutory timeframe – application for extension of time dismissed

[1] Shelley-Anne Dunbar (theApplicant) lodged an application with the Fair Work Commission (theCommission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with her employer. In her application, she described her employer as Walter Elliot Holding Pty Ltd, however the name of that entity was changed to Palm Lake Resort Pty Ltd on 23 May 2018. Accordingly, this application should have been brought against Palm Lake Resort Pty Ltd (theRespondent). The Respondent consented to the rectification of that error. Accordingly, pursuant to s.586 of the Act, I allow the name of the Respondent to be so amended.

[2] The Applicant began her employment on 6 March 2017 in a casual kitchenhand role at Palm Lake Resort at Beachmere Sands. She says her employment was terminated via text message on 26 March 2021. That application was lodged with the Commission on 14 June 2021.

[3] The Respondent raised two jurisdictional objections: first, that the Applicant was not dismissed; and second, that her application was lodged outside of the statutory timeframe.

Was the Applicant dismissed?

Respondent’s evidence and submissions

[4] The Respondent submits the Applicant was not dismissed and continues to be rostered for duty each week.

[5] The Respondent says the Applicant was employed as a kitchenhand in 2017, though she also performed cleaning duties. In December 2020, the Applicant was asked to perform additional work to act as the cook when the regular cook went on holidays. She was paid a higher wage while she performed those duties. When the regular cook left in January, the Applicant was asked to work as the cook from January to March, which she did. The Respondent submits that this role was always intended to be temporary given that the business planned to close the kitchen at that location in the middle of 2021, which it since has. The Respondent notes that between January and March there were some performance issues regarding staff not working rostered hours but recording that they did. Human Resources (HR) issued a written warning. The Respondent says that it understands that the Applicant then told her manager she was not skilled at her job. The Respondent states that the manager relayed to HR that the Applicant was unhappy with the disciplinary process and did not feel qualified to continue as a cook. Once she had said she was not qualified, it was not the Respondent’s place to make her to continue in that role.

[6] A decision was made that the Applicant would no longer be required to perform the additional duties of the cook’s role. That decision was communicated by text on 26 March 2021. The Respondent says there has been no dismissal but rather the Applicant simply continued in her original role. As a result of the kitchen closing at the location that the Applicant most often worked at, there are fewer hours required of her. The Applicant has always been engaged as a casual and, though she was offered to convert to part-time employment at some time in the past, she had not elected to do so. Given the Applicant was a casual, the Respondent was not required to roster the Applicant for any particular number of hours per week. Over the past few years, her hours, like her duties, had been varied. Even if the Applicant had usually averaged fifteen hours per week, the particular start and finish times might change. The Respondent submits that because of the closure of the kitchen, there was always going to be a reduction in the hours offered to the Applicant. However, the fact she also sometimes worked as a cleaner meant she could still be usefully employed for five or so hours a week in that capacity.

Applicant’s evidence and submissions

[7] The Applicant concedes that she is still employed by the Respondent. However, she asserts that she was terminated from her role as cook on 26 March 2021.

[8] The Applicant says she has always held a dual role, as cleaner and kitchenhand. When she commenced her employment, she was working about 15 hours a week in one location. This increased progressively to 20 hours at times. Her role has changed over the years, between locations and roles. The Applicant worked as a cook in December 2020 when the regular cook went on leave. Then, in or around January 2021 when the regular cook moved to a different location, the Applicant was asked to take on the role of cook. She agreed. From then on, she worked variously as a cleaner, kitchenhand and cook. When asked about her hours, the Applicant said that while she tended to work between 15-20 hours a week, she could not remember specifically on what days or at which times she performed each role. She was told at that time that if the role of cook did not continue, she would just resume her normal duties and normal hours. She was told that someone would bring her a new contract, but this never occurred.

[9] Issues arose in respect of staff (including the Applicant) coming to or leaving work early and taking breaks at non-prescribed times or for non-prescribed lengths. On or around March 2021, HR had some meetings and reprimanded people for having breaks when they were not meant to. The Applicant says prior to this she had never been told about the appropriate time to take breaks. She had simply taken them when she felt it was safe to do so and when it would not affect customer service. She was told by HR that her behaviour was fraudulent, by not signing the logbook. Her evidence was that there was no logbook for employees. That was only implemented later. A warning letter was emailed to the Applicant outlining how she should behave in future. She understands that other staff got similar letters.

[10] The Applicant became aware (by word of mouth) that there was a cook’s role available at the Deception Bay facility. She then looked up the job advertisement, which required that applicants have particular skills and/or qualifications. The Applicant did not have any formal qualifications so sent her manager an email asking to have someone to come into the kitchen and certify her as a cook. She did this because she understood that the kitchen at her current workplace was to close and she wanted to protect her job security moving forward. She understands that discussion was passed on to HR, who construed it as her not feeling qualified of performing the task. That was not her intention.

[11] A week or so later, she received a text message stating that the Respondent were sorry she did not feel capable in the cooking role, that she was no longer required as a cook and that she would go back to her original duties. Since receiving the text message, the Applicant has been rostered for only 5 hours a week (on Mondays) as a cleaner.

[12] The Applicant expressed to her manager that this outcome was unfair and that she felt she was capable in the cook’s role. The manager agreed the Applicant was capable in the cook’s role.

[13] In April 2021, the manager, the Applicant and HR had a teleconference during which the manager expressed that some people were sad the Applicant no longer held the cook’s role and wanted to extend an olive branch by re-engaging the Applicant as the cook. The Applicant says that HR said no.

[14] In short, the Applicant’s submission is that at the time her dismissal she was a cleaner and cook, so while she remains employed in her first role, she has been dismissed from the second. Her hours have been reduced from approximately 15 hours per week to five.

Legislative Framework

[15] Section 386 of the Act relevantly provides:

“Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) 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.”

[16] Section 386 of the Act has created two clear grounds on which a claim could potentially proceed. I have given consideration to the Full Bench’s reasons in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli 1and Mohazab v Dick Smith Electronics (No 2).2

Consideration

[17] This case is a curious one. I have some sympathy for the Applicant whose hours have been cut significantly. However, what is most important for me to consider at this time is that those hours have been reduced, rather than discontinued altogether. The Applicant’s rosters over the last few years were not submitted. However, her evidence suggested that while she averaged between 15-20 hours per week, when she attended for those hours and what duties she performed varied week to week. That is, some weeks she would work more as a kitchenhand than as a cleaner or vice versa. Similarly, she could not recall the days and times she worked because these would change from week to week. In that way, the evidence before me suggests that the Applicant was asked to perform various roles for the Respondent on an as needed basis. Given the Applicant concedes that she remains employed by the Respondent – albeit as a cleaner for five hours per week, rather than the cook role to which she was temporarily promoted and the 15-20 hours to which she had become accustomed – I am satisfied that she has not been dismissed within the meaning of the Act. The employment relationship, though changed, endures.

[18] Accordingly, this jurisdictional objection is upheld and on that basis the Applicant’s application is dismissed. In case I have erred in that conclusion, I have also considered the question of whether an extension of time should be granted in the present circumstances.

Was the application lodged within time?

[19] Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

[20] The Applicant lodged his application on 14 June. She accepts that her application was made some 79 days following her dismissal, being 58 days outside of the 21 days required under s.394(2) of the Act.

[21] The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.

Consideration of whether a further period should be granted

[22] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application be made. I have had regard to each below.

[23] The test of ‘exceptional circumstances’ establishes a high barrier for an applicant. 3 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),4 the Full Bench of Fair Work Australiastated that:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.”

[24] Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

[25] For the Applicant’s unfair dismissal application to proceed, it would be necessary for her to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 394(3) of the Act.

[26] The Applicant’s submissions were that the reason for her late application was due to a range of things happening in her life, including:

(a) the stress and anxiety caused by these events and the panic she felt regarding the reduction in her hours and her ability to provide for her family;

(b) she did not want to jeopardise the few hours she was still getting. She could not afford to lose those hours;

(c) the facts of this case are complex and messy. She was not sure what kind of application to lodge, and was financially unable to seek legal advice;

(d) her caring responsibilities for her young granddaughter who resides at her house with her father (the Applicant’s son) fulltime for two weeks in every month. If ever the Applicant has to work, her son looks after his daughter, but he is unemployed, cannot drive and requires a lot of assistance from the Applicant;

(e) she is a sole parent and also has caring responsibilities for a dependent child who is 13 years of age. Navigating the effects of lockdowns and home-schooling has been difficult;

(f) her daughter was also getting ready for the army basic training. Even though she is capable, as a parent, the Applicant provided emotional and other support;

(g) she applied for and commenced university studies, for social and human sciences. This process was new to the Applicant and thus, time-consuming. Her studies now require about 20 hours a week;

(h) the imperativeness of having to apply for NewStart allowance, waiting for an appointment and linking with a job network;

(i) as a JobSeeker, she is required to search for 15 jobs a month; and

(j) having been told by a number of people that her situation was unfair, she made inquiries with the Commission. She had then been assured that her job was protected if she did make the application, so she was more comfortable making the application.

[27] The Respondent claims there are no exceptional circumstances in this case. In short, the Respondent submits:

(a) the Applicant sent an email on 29 March 2021 indicating that she would be inquiring into her rights, which demonstrates that she knew she could do so;

(b) her caring responsibilities are not exceptional; and

(c) applying for university studies and NewStart are all done online and not unusual or exceptional, nor is meeting the JobSeekers requirements.

Consideration

Reason for the delay (s.394(3)(a))

[28] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 5 or a reasonable explanation.6 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,7 the Full Bench noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

[29] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 8

I accept the Applicant had some difficulties navigating how to make an application and that her life filled with a multitude of responsibilities as parent, grandparent, first-time tertiary student and JobSeeker. I also acknowledge that she was concerned about losing the hours that she was receiving. There is no doubt in my mind that the Applicant had many things in her life that required her attention and that dealing with her reduced hours caused her stress. She was also clearly concerned about how to dispute the new arrangements without risking any further reduction to her income. Notwithstanding the decision I made above with respect to dismissal, even if I were to only consider the matters I am required to regarding an extension of time, based on the material and submissions before me, I do not find that any of the reasons either considered collectively or individually put forward by the Applicant qualify as “exceptional”.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[30] The Applicant became aware of that she would no longer be rostered on as a cleaning in March 2021. This consideration weighs against the granting of an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

[31] The Applicant disputed the change in her duties generally with her manager when she first found out. On her evidence, a meeting then took place with herself, her manager and HR, at which HR confirmed that she would no longer be rostered on as a cook. No further steps were taken to dispute the change in duties. Indeed, the Applicant continued to attend for the five hours a week allocated to her. This factor therefore does not weigh in favour of an extension of time.

Prejudice to the employer (s.394(3)(d))

[32] The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 9 I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

[33] Without a proper hearing and assessment of all the evidence in this matter, it is often difficult to consider the merits of the Applicant’s claim. Evidence was not called, nor submissions made, in respect of the substantive case. However, given that the Applicant continues to be employed by the Respondent, it is difficult to see how this Application could – even if an extension were to be granted – succeed. Accordingly, I find that this factor weighs against the exercise of my discretion.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

[34] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 10 The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

[35] Having regard to all the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter. As I stated above, I am also not satisfied that the Applicant has been dismissed.

[36] I order that the jurisdictional objections be upheld and the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941, at [47].

 2   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 3   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

 4   [2019] FWC 25.

 5   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

 6   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

 7   [2018] FWCFB 901.

 8   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 9   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 10   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].