Valerie Misoyannis v J.L. Footwear Pty Ltd T/A Nine West

[2018] FWC 315

[2018] FWC 315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Valerie Misoyannis
v
J.L. Footwear Pty Ltd T/A Nine West
(U2017/11230)

COMMISSIONER MCKENNA SYDNEY, 2 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] On 19 September 2017, Valerie Misoyannis (“the applicant”) was dismissed from her former employment by J.L. Footwear Pty Ltd T/A Nine West (“the respondent”). On 20 October 2017, the applicant made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in which she sought an unfair dismissal remedy with respect to that termination of employment. The application was, thereby, lodged out of the timeframe for making such applications, namely within 21 days after the dismissal took effect (s.394(2) of the Act); and separately, the respondent’s Form F3 (Employer’s Response to Unfair Dismissal Application) noted and took objection to the application on the basis that it was out of time.

[2] Although the respondent noted its objection concerning the late lodgement of the application, it appears the respondent did not object to participating in a listing for conciliation, by telephone, before a Fair Work Commission (“Commission”) conciliator. That conciliation was scheduled for 23 November 2017. The conciliation before a Commission conciliator did not result in a resolution of the application. In accordance with usual processes, correspondence was then sent by the Commission member who principally deals initially with the carriage of late lodgements of NSW-related unfair dismissal applications. On 27 November 2017, that member caused correspondence to be sent to the applicant outlining matters relevant to the late lodgement, including as to “exceptional circumstances” within the meaning of s.394(3) of the Act.

[3] Following a number of delays in connection with the applicant’s response to the Commission member’s correspondence of 27 November 2017 concerning the late lodgement, the applicant was granted extensions by the member concerned. On 11 December 2017, the applicant provided certain materials. Unfortunately, as noted in correspondence to the applicant of 14 December 2017 from the associate to the member who then had allocation of the matter, the documents the applicant had provided were mostly illegible and, to the extent parts could be read, the materials did not address why the application was late. (No criticism may be made of the applicant; she was later to explain in proceedings before me that she had made her best endeavours to submit the materials using the facilities technologically available to her.) The correspondence of 14 December 2017 to the applicant also advised that the matter would be listed for hearing concerning extension of time.

[4] The matter was then duly allocated to me and listed initially for conference and/or directions, by telephone, on 19 December 2017. In consultation with the parties as to timing, given the then-impending Christmas/New Year period, directions for hearing were issued including the provision by the parties of their materials concerning the question of extension of time. Materials were lodged by the applicant and respondent pursuant to those directions. An extension of time arbitration conference/hearing was listed before me on 11 January 2018, at which time the applicant appeared on her own behalf and the respondent was represented by its general manager. The matters outlined in the written materials of each party were expanded and elaborated upon in that proceeding. While not all the parties’ evidence and submissions have been referred to below, I have considered all the matters in the written materials and also the matters addressed in the proceeding on 11 January 2018.

Consideration

[5] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect; or within such further period as the Commission allows under s.394(3). Section 394(3) provides the Commission may allow a further period for the application to be made by a person under s.394(1) if the Commission is satisfied that there are exceptional circumstances, taking into account: (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. I turn now to those matters.

The reason for the delay

[6] As to the reason for the delay, the applicant “thought she had a month to lodge the application” – albeit while indicating “she is aware that this is no excuse for the late lodgement”. In the proceeding, the applicant confirmed that she was not advancing lack of knowledge as “an excuse”; rather, as the applicant put matters, she was “just stating the facts.”

[7] While the applicant was aware that a lack of knowledge or a misunderstanding of the timeframe stipulated in the Act would not, in and of itself, constitute what might be regarded as a ground for the grant of an extension of time, the applicant referred also to matters particularly including what she described as her being “severely ill” at the time of the dismissal, being an illness she further submitted had been “exacerbated by the termination” of employment. I do not intend to traverse in a public decision matters going to the applicant’s medical status or conditions, or both (for it is unnecessary to do so in connection with my consideration and published decision in relation to the extension of time question). I have, however, carefully considered each of the matters upon which the applicant and respondent relied in such respects. I have considered also a certificate which was described by the respondent as having “conflicting information on the same medical certificate”, and the applicant’s submissions concerning the same. While the matters described by the applicant concerning her medical condition and her reaction to the dismissal, the physician-prepared medical certification itself does not indicate, for instance, that her medical conditions would have, for example, medically-precluded the applicant from making an application within time. Moreover, during the relevant time for making an application, and beyond, the applicant was in emailed communication with the respondent addressing matters relevant to and associated with the dismissal. While I have fully considered the applicant’s submissions about matters concerning her state of health in connection with the dismissal as to matters related to the dismissal and late lodgement, some of the content and tenor of these communications would tend to at least suggest that the applicant might also, around this time, have been able to separately or correspondingly lodge an application for an unfair dismissal remedy within time.

[8] The applicant also referred to awaiting certain information from the respondent which was “pertinent to the dismissal”. For example, when the applicant was informed of the dismissal on 19 September 2017 she was also informed that emailed confirmation would be sent that same day - whereas the correspondence apparently was emailed the following day, namely, 20 September 2017. The applicant’s submissions described matters as follows as to opening the email on 9 October 2017: “Valerie does not have a smart phone and did not see any need to check emails about this matter as it was all said [and] done in the termination meeting. As Valerie was not well anyway, reading material from Nine West would only make her feel worse [and] the need to check these emails became a last priority.” Upon opening the emailed correspondence on 9 October 2017, the applicant was concerned that the correspondence did not attach documents which she considered had been promised to her, but which the respondent submits it was not aware the applicant wanted (but which were subsequently provided pursuant to her request thereto). As a result, there were various communications consequent upon the applicant’s request of 9 October 2017 for documents or further information, or both. While the applicant was ultimately dissatisfied with the response provided (for example, “The information of which conduct breached which category of the Code of Conduct still has not been provided”), it is also common ground that each party had made a recording of the meeting concerning the termination of employment and, separately, the applicant also acknowledged she had overlooked the fact that certain materials were sent by the respondent in the course of the post-9 October 2017 communications. It is not at all uncommon for dismissed employees to continue to be in communication with the former employers about matters related to the dismissal; but that does not prevent an application also being lodged within time.

[9] The respondent referred, in a more general, contextual sense, to delay involving the applicant in connection with matters such as the filing and service of materials within time since the commencement of this application – including in connection with querying the applicant’s explanation as to meeting certain of the dates specified for the provision of materials. Those delays and extensions of time were, however, the subject of the grant of extensions of time by the member to whom the application was formerly allocated and, in any event, those post-lodgement delays do not relevantly arise for consideration under s.394(3) of the Act.

[10] The three principal reasons which appear to have been advanced by the applicant as to the reason for the delay, namely, being mistaken about the period of time within which to make an application, medical condition-related matters, and awaiting further documents and/or information do not, on balance and on a consideration of the authorities, weigh in favour of a conclusion as to the existence of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[11] It is common ground the applicant first became aware of the dismissal on the date it took effect, namely, 19 September 2017. Even accepting that the emailed confirmation of the same was not provided until the following day, 20 September 2017, and that the applicant thereupon did not open the correspondence until 9 October 2017, do not provide good grounds favouring a finding of exceptional circumstances as to extending time.

Any action taken by the person to dispute the dismissal

[12] The applicant submitted (confirming, by the by, what was written in the earlier Form F3 Employer’s Response, albeit not otherwise addressed specifically in either party’s materials concerning the extension of time), that she had stated towards the conclusion of the meeting concerning the termination of employment “Let the games begin.” As to this, the applicant made certain submissions about the respondent’s general manager, which I do not repeat in this decision, but which relevantly included the assertion that the manager would have known that further action would be taken – but that, here, the applicant then “just screwed up” the dates. Nothing was advanced by the applicant to indicate that she took any action to dispute the dismissal, apart from lodging the application for an unfair dismissal remedy. As to this, when asked by me in the proceedings whether any other action had been taken to dispute the dismissal, the applicant responded “Do I have to state that?” Upon being advised by me that this was one of the matters I was required to consider in relation to extension of time, the applicant further stated: “Let’s leave it at ‘No’”, explaining that she did not want to “share that.”

[13] There was an indication in the submissions for the respondent that, notwithstanding the applicant’s submissions about the effect that the dismissal had caused in her relevantly not being equipped, health-wise, to make the application within time, the applicant has visited one of the respondent’s retail outlets and had also engaged in some form of post-dismissal social media usage concerning the respondent or one of its employees or former employees. These matters were explained by the applicant as being, in effect, the exercise of her own individual rights as a consumer to visit the retail outlet; and that Facebook is a public forum where she could contact anyone she wanted to contact within the Facebook rules.

[14] There is nothing (of relevance) before me to indicate that any action was taken by the applicant to dispute the dismissal, other than the late lodgement of this application. This weighs against an extension of time.

Prejudice to the employer (including prejudice caused by the delay)

[15] The applicant submitted there was no prejudice to the respondent as it is a big organisation and the delay in lodgement in question is “not a big deal” for such an organisation. The applicant further submitted that, given the nature of the respondent’s retail trading operations, for example over the Christmas/New Year period, it would make more sense for matters to be dealt with a little later rather than sooner.

[16] While the submissions for the respondent agreed the respondent was a big company, nonetheless it did not have a “huge headcount” and the respondent would actually expect applications of this nature to be filed in a timely manner.

[17] The question of prejudice to the respondent (including prejudice caused by the delay) does not arise strongly in this case as weighing against an extension of time being granted, but mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.

The merits of the application

[18] The applicant perhaps misunderstood the question of the role of merits in relation to the question of extension of time. I do not say this in any critical way, as it was the applicant’s understanding that merit did not relevantly arise; she indicated that she had not prepared for that (albeit the applicant was informed in the correspondence of 27 November 2017 of the matters the Commission will take into account). In any event, the applicant relevantly confirmed she considers she has a meritorious case were the matter to proceed to a substantive merits hearing. The applicant considers she was treated badly for several months and as a result she “wasn’t the perfect employee”, but by “no means as bad as” the respondent had alleged. The applicant considered, as to procedural fairness, that she had not been provided with the specifics of the code of conduct-related breaches as to her behaviours that led to the dismissal. The applicant also submitted that her medical condition/s had been adversely affected by the dismissal.

[19] The respondent considers there are no merits to the application. The submissions for the respondent indicated the company considers itself to be very strict with its policy and procedures, and felt it had a duty of care to take the action it did and to terminate the applicant’s employment. As to this, the submissions for the respondent were that “We find bullying, harassment and any form of discrimination to be completely unacceptable in any of our workplaces.”

[20] It is clear that the Commission should not embark on a detailed consideration of the substantive case when considering whether to extend time for making an application for an unfair dismissal remedy. Here, as I understand it, the applicant does not necessarily dispute some of the conduct which, in the end, led to, or was relevant to, the decision of the respondent to effect the dismissal. However, again as I understand it, the applicant’s case in relation to the impugned alleged conduct would fall to be examined through the lens of concerns she holds about matters including, but not limited to, the conduct of others towards or involving her; and also about an alleged lack of particularity concerning her behaviour as it dovetailed with the code of conduct. It would be plainly inappropriate to express any concluded view about matters concerning the merits of the application at this preliminary juncture and where matters are undeveloped in a full evidentiary sense (and absent of course a full ventilations of matters upon which either party may rely in any full hearing concerning the substantive application). Even the applicant’s own concessions relating to conduct in seeking to explain aspects of the impugned conduct tend, however, to weigh against an extension of time when considering, among the other cumulative criteria in s.394(3) of the Act, the criterion in s.394(3)(e).

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

[21] Nothing appeared to arise in the case advanced by either party which would seem to engage consideration of fairness between the applicant and other persons in a similar position, and so I regard that to be a neutral matter in the balancing of the cumulative matters arising for consideration.

Conclusion

[22] On a consideration of the statutory criteria in the context of the matters before the Commission as to the question of an extension of time in relation to the late lodgement of this application, I am not satisfied that there are exceptional circumstances such as to allow a further period for the application to be made under s.394(1) of the Act. The familiar considerations of the type described in cases such as Nulty v Blue Star Group[2011] FWAFB 975 do not lend themselves to a conclusion that the matters comprise exceptional circumstances. As such, an order dismissing the application will issue in conjunction with this decision.

COMMISSIONER

Appearances:

V Misoyannis in person

F Healy for the respondent

Hearing details:

2018.

Sydney:

January 11.

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