Vicki Batrick v The Commercial Sporting & Recreation Club Inc

[2021] FWC 1302

[2021] FWC 1302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vicki Batrick
v
The Commercial Sporting & Recreation Club Inc
(U2021/1188)

DEPUTY PRESIDENT BEAUMONT PERTH, 19 MARCH 2021

Application for an unfair dismissal remedy; out of time; no exceptional circumstances.

1. Introduction

[1] Ms Vicki Batrick applied for an unfair dismissal remedy after her employment with The Commercial Sporting & Recreation Club Inc (the Respondent) came to an end. Her application was filed with the Commission on 12 February 2021. Section 394(2) sets a 21-day timeframe in which an unfair dismissal application must be filed. Ms Batrick is of the view that her application was made in time. Alternatively, she contends there are exceptional circumstances that warrant her being granted an extension of time in which to file her application. The Respondent presses that Ms Batrick was not dismissed. It argues that she resigned on 20 October 2020 and thereafter covered shifts until such time as it could source her replacement. It appears that the last shift Ms Batrick worked was on 23 December 2020.

[2] The issues presented are:

a) when did Ms Batrick’s employment with the Respondent end;

b) did Ms Batrick’s employment relationship terminate by way of dismissal;

c) if the employment relationship terminated by way of dismissal, when did the dismissal take effect;

d) was Ms Batrick protected from unfair dismissal at the time she was dismissed;

e) was Ms Batrick’s application made with the statutory time limit; and

f) if Ms Batrick’s application was not made within the statutory time limit should Ms Batrick be provided with a further period in which to file her application.

[3] Essentially, if Ms Batrick’s application is to now proceed, it is necessary for her to show that she was dismissed as that term is understood in ss 12 and 386 of the Fair Work Act 2009 (Cth), she was protected from unfair dismissal given her purported status as a casual employee, and if relevant, that there are exceptional circumstances that warrant the provision of an extension of time in which to make her unfair dismissal application.

[4] Turning to the point regarding exceptional circumstances, s 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. 1

[5] In addition to the circumstances being exceptional, the Commission also considers whether it is fair and equitable for an extension to be granted.

[6] In short, Ms Batrick advanced:

a) she was a casual employee that worked on a regular and systematic basis and as such was protected from unfair dismissal at the time that she was dismissed;

b) while she had provided a resignation on 20 October 2020, she had done so in the heat of the moment in response to the Respondent:

i. advertising a permanent position of Bar Manager which she was experienced and had been covering for a long period – yet was not consulted about the position;

ii. had experienced a damaged sciatica which appeared to have been aggravated from working additional shifts as there were insufficient staff employed;

c) on 22 October 2020, she met with Ms Drew (Manager of the Respondent) and it was mutually agreed – verbally, that her resignation was withdrawn, she would continue to work her Monday and Tuesday shifts:

i. therefore, there was no break in her continuous service;

ii. the resignation was of no effect; and

d) her application was filed late as she was waiting for the Committee of the Respondent to inform her whether or not she still had a job.

[7] The Respondent contended it had accepted Ms Batrick’s written resignation on 20 October 2020 in good faith, and there was a mutual verbal agreement that Ms Batrick would continue to work for the Respondent while her replacement were trained up. Dr Giles, the current President of the Respondent, submitted that over a period in December, Ms Batrick’s shifts decreased, there was no dismissal, and Ms Batrick’s resignation was clear and final and was accepted at the time.

[8] When the Respondent was asked whether it wished to make any submissions on whether there were exceptional circumstances that warranted extending the period of time in which Ms Batrick could make her application, the Respondent, through Dr Giles, expressed that the Respondent did not support an extension of time being granted.

2. Background

[9] Although the parties received a comprehensive email outlining the resources available to assist with the preparation of their cases, it appeared the Respondent had not read or otherwise viewed (including YouTube videos) that material. Despite then having again explained the arbitral process to all in attendance, the Respondent declined to call any witnesses and, except for seeking to tender two documents – the first, Ms Batrick’s resignation letter, the second a purported table of the days and hours worked by Ms Batrick during the months of October, November and December 2020, there was no further evidence led. The Respondent’s submissions have been set out at paragraphs 7 to 8 of this decision. It is fair to say they were brief.

[10] However, it’s pertinent to note that the Respondent appeared to be a sports club - its Board/Committee run by volunteers. Although, it appeared Ms Drew was the salaried Manager of the Respondent, and while she offered no information at the hearing, she was nevertheless in attendance. It was, therefore, not the case that there were no potential witnesses. And, after all, it had been alleged that it was Ms Drew who had held the discussion with Ms Batrick concerning her resignation letter. Yet, despite emphasising the importance of giving evidence, particularly when there appeared to be disputed facts, the Respondent declined the opportunity to do so and declined to cross-examine Ms Batrick.

[11] As the Respondent led no evidence to rebut Ms Batrick’s account, I have accepted Ms Batrick’s evidence that:

a) she had worked for the Respondent for a period of some six and a half years;

b) she worked every Monday and Tuesday during the darts and pool competition fixtures each year;

c) if the darts or pool competition occurred on a day other than Monday or Tuesday, she would, at times, work on that day;

d) she did not receive a roster, and her work schedule was never communicated to her, it was just accepted that she worked Monday and Tuesday each week during the darts and pool competition fixtures;

e) whilst she had tendered her written resignation on 20 October 2020, that resignation was retracted by mutual agreement between both Ms Batrick and Ms Drew;

f) Ms Batrick continued to work for the Respondent post 20 October 2020 every Monday and Tuesday from the week ending 18 October 2020 until 26 November 2020;

g) Ms Batrick did not work the week ending 20 December 2020 due to a break in the pool competition, and in the week ending 27 December 2020, she worked a Monday and a Wednesday because the darts competition was held on a Wednesday; and

h) Ms Batrick was advised on 18 January 2021 by Ms Drew that she would not be given any further hours.

[12] It was difficult to illicit from Ms Batrick the period in the year that the dart and pool ‘seasons’ occurred. Dr Giles provided a purported table of the days and hours worked by Ms Batrick during the months of October, November, and December 2020. It showed, in my view, a regular work pattern of working Monday and Tuesdays for the predominate part of the period. There were only two weeks in that period where Ms Batrick worked less than two days a week. Those weeks falling in mid-December. Such evidence, even when accompanied by the submissions advanced by the Respondent, is insufficient, however, to persuade me that Ms Batrick’s account should not be preferred.

[13] It was noted in the Respondent’s submissions that Ms Batrick gave her resignation on 20 October 2020, that Ms Drew accepted the resignation, and Ms Drew had communicated that Ms Batrick would be kept on only to cover those shifts while her replacement(s) were trained up. However, as noted, the Respondent chose not to lead any evidence from Ms Drew – who attended the hearing.

3. Consideration

[14] Having considered the evidence of Ms Batrick and the submissions advanced by the Respondent, I have concluded that Ms Batrick’s dismissal took effect on 18 January 2021 for the following reasons.

[15] In the decision of Metropolitan Fire and Emergency Services Board v Duggan 2 the Full Bench stated:

[21] … The expression “termination on the employer’s initiative” is concerned with the termination of the employment relationship, not the employment contract. The employment contract and the employment relationship are related but distinct.” (citations omitted)

[16] The distinction between termination of the employment relationship and the employment contract is not immaterial. The Full Bench continued:

[22] A notice, whether oral or in writing, which is ineffective to terminate the employment contract may nonetheless be effective to terminate the employment relationship …”

[17] It follows that a ‘notice of dismissal’ for the purpose of s 383(a)(i) of the Act, does not need to comply with the requirements of s 117. Therefore, s 383(a)(i) of the Act does not require, as is the case in s 117 of the Act, that the notice be in writing, informing the recipient of the day of the termination. 3

[18] Ms Batrick was informed, unequivocally in my view, that she would not be given any further hours as of 18 January 2021. At that point, the Respondent had made it clear that Ms Batrick no longer had a job and had, in fact, been dismissed. Ms Batrick’s dismissal, therefore, took effect on that same date. While Ms Batrick appeared to grapple with whether she had been dismissed at this time, on any objective level, the presence of another worker performing Ms Batrick’s duties on the day Ms Batrick considered she was rostered to work, in addition to being told that she would be offered no further hours, left no doubt she had been dismissed. While Ms Batrick may have been left uninformed as to the reason for the termination of her employment at that time, she was not so uninformed regarding her dismissal.

[19] It was not until 12 February 2021 that Ms Batrick made her application for an unfair dismissal remedy. For the application to have been made in time, it should have been made by 8 February 2021. As it was, it was four days late.

3.1. Exceptional circumstances

[20] There is, however, a 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. 4

[21] In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty), 5 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.6 Whilst Nulty considered the general protection 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.

[22] 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. 7 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.8

[23] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, 9 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. 10

[24] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’.

3.2. Reasons for the delay in making the application

[25] Consideration turns to whether Ms Batrick has provided a credible reason for the whole or part of the period that her application was delayed. 11 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.12 It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, 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.13

[26] The predominate reason for the delay in making the application was Ms Batrick’s purported lack of clarity as to whether she had been dismissed, and if so, the reason. Ms Batrick tendered into evidence a letter of 21 January 2021, which she had purportedly provided to Committee members. In that letter Ms Batrick wrote:

I would have thought that the committee would try and sort this out internally as requested but it seems as I have been left with no choice but to seek legal advice for unfair dismissal and year of backpay that is owing to me. I can still withdraw the claim for the next 14 days if you wish to sit down and talk it out. 14

[27] As of 21 January 2021, Ms Batrick was clearly contemplating that she had in fact been dismissed and that making an unfair dismissal application was a recourse that was available to her. Yet, she did not make an unfair dismissal application, notwithstanding the reference to withdrawing ‘the claim’. While Ms Batrick submits that she was attempting to ascertain the status of her employment, it is evident that she knew she had been dismissed. While the reason for her dismissal may have remained elusive, the fact that she had been dismissed did not.

[28] Ms Batrick tendered into evidence copies of text messages that she had sent to the Club President. On 16 January 2021, the question was posed ‘Hi Wendy. How did it go with Willie? Do I still have a job???’. To which Ms Batrick received a reply, ‘Haven’t had a chance to speak with her privately yet’. Further text messages ensued; however, their content does not dissuade me that as of 18 January 2021, Ms Batrick knew she had been dismissed, and as of 21 January 2021, she was aware that it was open to her to make an application for unfair dismissal.

[29] Aside from seeking clarification concerning her employment status, there appeared to be no other reason proffered for the delay in making the application. In all of the circumstances, I am not satisfied that Ms Batrick has made out an acceptable or reasonable explanation for the whole period of the delay in lodging her unfair dismissal application, or even part. This weighs against a finding that there are exceptional circumstances.

3.3. Whether the Applicant became aware of the dismissal after it took effect

[30] I have considered all of the evidence and submissions. I am satisfied that Ms Batrick, for the reasons explained above, was notified of her dismissal on the same day that it took effect – 18 January 2020. I am satisfied that this factor is, therefore, a neutral consideration.

3.4. Action taken to dispute the dismissal

[31] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 15 I have considered all submissions and the evidence in this respect. Ms Batrick did appear to dispute her dismissal when one considers her letter of 21 January 2021. This circumstance weighs in favour of an extension of time being granted.

3.5. Prejudice to the employer

[32] I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted. The Respondent made no submissions in this respect, and neither did Ms Batrick. This is despite both being informed at the commencement of the hearing that this factor would be considered.

[33] As it is, I am unpersuaded that the Respondent would suffer prejudice. I consider this to be a neutral factor in the present case.

3.6. Merits of the application

[34] 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.

[35] In Kornicki v Telstra-Network Technology Group, 16 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 lodgement. 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. 17

[36] Concerning the substantive application, the merits have not been fully tested. However, based on the information to hand, I consider that that there was an arguable case that Ms Batrick had been employed on a casual basis, and her pattern of work was on a regular and systematic basis. On an objective level, it was open to find that she had a reasonable expectation of ongoing employment.

[37] However, evidence on the merits is rarely called at an extension of time hearing, and as already noted, there was a dearth of evidence before me. It has been said that 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 his application. 18 I have adopted that approach.

[38] While I consider it likely that Ms Batrick was protected from unfair dismissal as she had an arguable case of having satisfied the minimum employment period and had earned less than the high income threshold, the merits of the application more generally would need to be scrutinised. This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. In all of the circumstances, I have considered this to be a neutral factor.

3.7. Fairness between the person and other persons in a similar position

[39] The Deputy President in Morphett v Pearcedale Egg Farm, 19 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. 20

[40] Neither the Respondent nor Ms Batrick addressed this factor, and as such, in the circumstances of this case, I have considered it a neutral criterion.

4. Conclusion

[41] Having considered the matters referred to in paragraphs [14] – [40] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Ms Batrick’s application to be made.

[42] There is no satisfactory explanation for the period of the delay in making the application, and the other factors are predominantly neutral, with the exception that Ms Batrick disputed her dismissal. In this respect, the totality of the evidence is insufficient to ground a finding that Ms Batrick’s circumstances were out of the ordinary course, unusual, special or uncommon. Furthermore, I do not consider that it would be fair and equitable to grant an extension.

[43] The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order 21 will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms Vicki Batrick, Applicant;
Dr Wendy Giles, for the Respondent.

Hearing details:

2021
Perth (Telephone)
March 23

Printed by authority of the Commonwealth Government Printer

<PR727659>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   [2017] FWCFB 4878.

 3   Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 [38].

 4   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 5   [2011] FWAFB 975.

 6 Ibid [15].

 7 Ibid [13].

 8   Ibid.

 9   [2018] FWCFB 901.

 10 Ibid [38].

 11   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.

 12   Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041 [10].

 13   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29] – [31].

 14   Exhibit A1.

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

 16   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 17   Ibid.

 18   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 19   [2015] FWC 8885.

 20 Ibid [29].

 21   PR727912.