Tammy Louise Fredericks v Alcoa of Australia Limited
[2023] FWC 477
•24 FEBRUARY 2023
| [2023] FWC 477 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tammy Louise Fredericks
v
Alcoa of Australia Limited
(C2022/8218)
| COMMISSIONER YILMAZ | MELBOURNE, 24 FEBRUARY 2023 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances – application dismissed.
On 12 December 2022, Ms Tammy Louise Fredericks lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Alcoa of Australia Limited (Alcoa). Ms Fredericks commenced employment on 3 October 2022, in the position of Business Improvement Specialist at the Pinjarra Alumina Refinery and her employment was terminated on 18 November 2022.
Ms Fredericks employment was terminated following a review of her employment during the probation period. She was required to attend a meeting on 18 November 2022 with her manager and the HR Manager where concerns regarding her performance were discussed. After an adjournment of the meeting Alcoa returned informing Ms Fredericks that her employment was terminated.
Ms Fredericks contends that there was no justification for her dismissal, and she refers to the following contraventions of the Act in support of her application.
Division 3 - Workplace rights - ss.340 Protection, 343 Coercion and 344 Undue influence or pressure
Division 4 - Industrial activities - s.348 Coercion
Division 5 - Other protections - s.351 Discrimination on the basis of race
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. Ms Fredericks’ application was lodged 3 days after the 21-day statutory time limit.
Alcoa object to the application on the basis that it is outside of the statutory time frame and that no exceptional circumstances warrant an extension of time.
Ms Fredericks was self-represented and Alcoa was granted leave to be represented by Mr Wade of Counsel for Ashurst Australia. Ms Fredericks gave oral evidence and Mr Bacon, HR Manager gave evidence for Alcoa.
Applicant’s submissions
Ms Fredericks submits that some three weeks into her employment she was drug and alcohol tested which produced an initial non-negative result. Consequently, Alcoa policy required that she leave the worksite immediately. Ms Fredericks submits that while the test and result, at such an early stage of her employment, was surprising she was not alarmed as she had declared all of her medications to Alcoa’s medical centre when she commenced employment. As it turned out a further test result returned clear on 3 November 2022, with the nurse noting that the results were consistent with the list of medications declared to Alcoa. During this period Ms Fredericks was in contact with her manager.
Ms Fredericks submits that comments made to her by her manager concerned her and she suspected that she was being victimised, bullied and subject to microaggressions. Specifically, Ms Fredericks referred to a comment by her manager to her that he was contacted by HR inquiring whether she was sick on a day that he granted permission to work from home. She also referred to his opinion that it was unusual for a drug and alcohol test at such an early stage of employment. In addition, Ms Fredericks also states that she was a party to a private conversation with a staff member where it was alleged that her initial drug and alcohol test result was a subject of discussion and laughter among staff.
On 17 November 2022, Ms Fredericks submits that she was permitted to work from home, however, she decided to go to work because a colleague had covid and she figured her manager may require support as he was expecting guests. At 9.30am Ms Fredericks’ swipe card did not work and instead of going to security to address the issue with her swipe card, she left to go home.
Later that day she received a Microsoft Teams message from her manager requesting that she attend a meeting with him and HR. The meeting was to occur the following day and was to concern her behaviour and performance issues as part of her probation review. While Ms Fredericks did not receive an agenda, she understood from her manager some of the issues that would be raised. This included behaviour raised by people outside her team, her time outside of the office (such as going on walks but working using her phone), that she worked from home without her laptop and possibly her swiping in and out, outside of her official start and finish times.
Ms Fredericks attended the meeting despite her concerns over the short notice and her inability to organise a support person. She submits that there was no issue with her performance as her manager did not have concerns with her standard of work. However, the HR Manager raised “concerning behaviours”, such as her tone in conversations and emails and her leaving after her swipe card did not work instead of going to security. Ms Fredericks described the HR Manager’s line of questions as bullying and victimising. She also states that the line of questioning was different to what she was told to expect from her manager.
Ms Fredericks was given a letter of termination of employment when the meeting resumed after a short break. The letter confirmed termination effective from 18 November 2022 with one month in lieu of notice.
Ms Fredericks did not elaborate fully on the grounds relied upon for the general protections application. However, she did state that the Refinery Manager and Production Manager who are of a certain racial background may have misunderstood her due to her heritage and cultural background. She also added that there were no senior women at Alcoa Pinjarra. In addition, she states that her medical records were compromised and used against her by a fellow female employee and her office was entered without her knowledge to identify that she did not take her laptop when working from home.
Respondent’s submissions
Alcoa deny any contravention of the general protections provisions and submits that Ms Fredericks was dismissed during the period of probation for failing to meet the required performance standards.
Alcoa objects to the application on the basis that it did not meet the 21-day statutory time frame. It further submits that Ms Fredericks provides no basis for allegations of contravention of the general protection provisions as she as identified in her application.
Further, Alcoa submit that Ms Fredericks’ application for an extension of time was somewhat unusual as there was an absence of evidence of acts, steps or circumstances that inhibited the making of the application within time and the additional unsolicited correspondence to various recipients of Alcoa did not prevent an application being made. Alcoa submit that it is reasonable to conclude from the evidence that Ms Fredericks did not start to make her application until after the deadline of 21 days had passed.
Consideration
General protections applications involving dismissal must be made within 21 days. 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) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
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]
I now turn to Ms Fredericks’ arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
Ms Fredericks’ dismissal on 18 November 2022 was clearly apparent and she does not challenge the date of dismissal. Throughout the written material and in oral evidence Ms Fredericks confirmed her awareness of the time frame required to lodge her application. I am also satisfied that Ms Fredericks understood that her application was lodged three days late.
In terms of the reason for the delay, Ms Fredericks states that she was not in the right frame of mind and that this was obvious as she was escorted from the building she did not notice that she left her personal mobile phone behind. She submits that her Wi-Fi at home is unreliable, and this caused not only part of the delay, but also added to her distress as she struggled to inform her psychiatrist that she had missed her appointment.
Ms Fredericks described the actions taken to retrieve her mobile phone which she required to hotspot to send emails. She eventually retrieved her phone and other personal possessions on 22 November 2022. An appointment was made to see her psychiatrist on 23 November 2022 and on 23 November she engaged with a lawyer. However, the same lawyers advised her that they were unable to represent her on 2 December 2022 due to other commitments and Ms Fredericks’ inability to send through the required materials the week before.
Ms Fredericks states that her mental health suffered and due to the financial constraints, she had together with her inability to obtain the support of another law firm being so close to Christmas, she focussed her efforts on appealing to internal processes of Alcoa to reverse its decision to terminate her employment.
Ms Fredericks submits that efforts to obtain a reversal of the decision took her up to the date of her filing her application.
Alcoa submits that while Ms Fredericks challenged her dismissal there was no exceptional reason for the delay as her correspondence to the Refinery Manager and others for a review of the dismissal decision did not prohibit her from making an application. Ms Fredericks lodged a complaint through its central platform EthicsPoint and to the CEO who referred her to direct email addresses for the lodgement of complaints. Ms Fredericks wrote to internal Ethics and Compliance Team and the Data Integrity Office. In addition, Alcoa submit that Ms Fredericks received responses well before the deadline with the last from EthicsPoint on 7 December 2022, two days before the application’s 21-day deadline.
Alcoa also refers to Ms Fredericks statements regarding the delay and say that the facts appear disparate and are either deficient or irrelevant to weigh in favour of an extension of time, particularly in terms of the context of her communications which used strong language regarding her rights, knowledge of the legislation and clearly identified the timeframe.
During cross examination of Ms Fredericks, I observe that she admitted to expressing her letters strongly and perhaps overstated her position in order to press a resolution in her favour. Despite these efforts to press a resolution, Ms Fredericks did not succeed to obtain the outcome she desired. However, one cannot ignore the evidence that Ms Fredericks was well aware of the timeframe for an application and knowing she could not rely on anyone other than herself, it is incomprehensible why she did not take active steps to file her application before 12 December 2022. Even though there were Wi-Fi issues where she resided, she was in possession of her mobile phone from 22 November 2022. At least from this date she could have used her phone to hotspot to file online, telephone the Commission or appear in person at Registry in the WA office of the Commission. Ms Fredericks gave evidence that her lawyers informed her on 2 December 2022 that they could not represent her, and had she contacted the Commission at that date her application would have been filed on time.
There must be a credible reason for the delay.[3] In considering all of the evidence and submissions I do not find Ms Fredericks’ explanations credible to explain the delay. Ms Fredericks provided no evidence preventing her application to be filed on time nor can I accept that her explanations or lack of them to be exceptional, unusual, out of the ordinary, uncommon or special to justify an extension of time.
Having considered the evidence and submissions I am not satisfied that this consideration weighs in favour of an extension of time.
Steps taken to dispute the termination
Ms Fredericks submits that she challenged her dismissal, and this was evidenced by her emails to her line manager on 22 November 2022, and to the Refinery Manager on 23 November 2022. Following the response from the Refinery Manager that the decision stood, Ms Fredericks wrote to the CEO of Alcoa in America, contacted EthicsPoint, the internal Ethics and Compliance Team and Data Protection Office.
Alcoa does not dispute that Ms Fredericks challenged her dismissal by writing to her line Manager, the Refinery Manager, to EthicsPoint, to the Ethics and Compliance Team and Data Protection Office. However, Alcoa submit that Ms Fredericks was not prevented from lodging her application within the required timeframe despite these efforts. Further they submit that Ms Fredericks received well before the deadline a response to her letters seeking reinstatement to the same position or in a higher-level position.
Ms Fredericks suggests that she intended to exhaust the internal processes in view of her admiration for Alcoa and confidence that her request would be responded to positively. However, there is no explanation why despite the responses which were received prior to the deadline that the application was still out of time.
I am satisfied that Ms Fredericks took steps to challenge her dismissal and Alcoa was on notice of the challenge. It is not necessary to draw any conclusion that the steps taken were exceptional, but rather to weigh this consideration with the other requirements to determine exceptional circumstances. Nonetheless, I do not consider the correspondence challenging the dismissal weighs in favour of an extension.
Prejudice to the employer
Ms Fredericks contends that the delay in the application causes no disadvantage or unfairness to the employer.
Alcoa does not suggest prejudice experienced from the delay. Any inconvenience arising from responding to a late application is not material to this consideration. In the circumstances I do not find that Alcoa would suffer prejudice should an extension be granted. Nevertheless, an absence of prejudice is insufficient to grant an extension, therefore in this matter I consider this a neutral consideration.
Merits of the application
Ms Fredericks contends that she has evidence of bullying, victimisation and racism. This evidence was not presented, however, the correspondence between Ms Fredericks and the Refinery Manager was tendered. On assessment of that material Ms Fredericks seeks reinstatement to her position or at a higher level and refers to her dissatisfaction with the meeting and most particularly the conduct of the HR Manager as she describes her grievance. The Refinery Manager acknowledged her grievance and in doing so indicates his understanding of the difficulty she has in accepting the decision to dismiss her. He further states that the decision was known to him and that he fully supports his leadership team. This correspondence on any objective basis cannot be construed as evidence of bullying, victimisation or racism.
In the correspondence of 3 December 2022 to the Ethics and Compliance Team and the Data Protection Office, Ms Fredericks describes her grievance as follows:
While she does not have evidence, she feels she has been victimised, bullied through microaggressions by a colleague that knew of her alcohol and drug test and shared information to others and laughed about the non-negative result.
She queries how the colleague knew of the test result when the information was confidential, sensitive and only available to a select few.
The letter of termination contained in her view false information.
The HR Manager bullied, victimised and was racist by stating that her tone was unacceptable and her behaviour erratic.
That the HR Manager accessed confidential information to reference Ms Fredericks’ behaviour which he described as erratic and unacceptable in tone. Ms Fredericks contends that when she pulled him up on “breaching confidentiality” he initiated a break in the meeting, only to return later advising her of her dismissal.
Mr Bacon gave evidence for Alcoa and during cross examination he denied that he accessed confidential information. He further disputed Ms Fredericks ‘recollections’ of what was said during the probation review meeting.
Alcoa denies any contravention of the general protections provisions and states that Ms Fredericks has not identified any workplace right in relation to ss.340, 343, 344 and 348 of the Act, nor any decision related to s.344. In relation to s.348, no industrial activity has been identified or established within the meaning of s.347. It further denies any contravention of s.351 and the decision to dismiss Ms Fredericks’ employment is a consequence of her failing to meet the required performance level during the probationary period of employment.
Having regard to the matters referred to above, it is apparent that merit will turn on the evidence, and even having had the benefit of oral evidence from Ms Fredericks and Mr Bacon, no greater insight into the merits of the matter can be made in favour of Ms Fredericks. As Ms Fredericks provided little detail concerning merits other than stated above, it is not possible to form a view of the strengths of the matter therefore at best, merit is a neutral consideration for an extension of time.
Fairness between the person and other persons in a like position
Ms Fredericks had no comment to make in relation to this consideration.
Alcoa submits that there are no exceptional circumstances to deviate from similar situations dealt with by the Commission and to do so would create unfairness between employees in a similar position.
Having regard to the absence of evidence concerning this consideration I do have regard for the requirement for consistency of decisions, therefore I do not find this consideration to weigh in favour of an extension of time.
Conclusion
Exceptional circumstances may include a single exceptional matter or a combination of the factors taken together that are considered exceptional. The bar for an extension of time is a high one and, in this application, there is not one single exceptional matter or a combination of factors to grant an extension of time. I have considered each of the requirements of s.366(2) and I am not satisfied the reason for delay, and the steps taken to challenge the dismissal to weigh in favour of an extension. I am not satisfied that Ms Fredericks’ circumstances prevented the filing of the application on time. Prejudice in my view is a neutral consideration and there is no reason to depart from accepted decisions in considering fairness between persons in a like position. Finally, I did not find merit to be a consideration in favour of an extension. Due to the contested evidence concerning the probation review meeting and the absence of detail or evidence relating to the alleged contraventions I find merit to be a neutral consideration.
Having considered the evidence and submissions against each of the provisions of s.366(2) I am not satisfied to grant an extension of time on the basis of exceptional circumstances. Accordingly, the matter is dismissed.
COMMISSIONER
Appearances:
Ms T.L. Fredericks on her own behalf.
Mr R. Wade for the Respondent.
Hearing details:
15 February 2023
Melbourne (By Video using Microsoft Teams)
[1] (2011) 203 IR 1.
[2] Ibid at [13].
[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
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