Zoey Hunt v Bretcon Pty Ltd

[2021] FWC 6413

[2021] FWC 6413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009 (Cth)
s.365 - Application to deal with contraventions involving dismissal

Zoey Hunt
v
Bretcon Pty Ltd
(C2021/4363)

DEPUTY PRESIDENT LAKE BRISBANE, 22 NOVEMBER 2021

Application for extension of time to file unfair dismissal application – application granted.

[1] Zoey Hunt lodged an application with the Fair Work Commission (theCommission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment by Bretcon Pty Ltd (Bretcon).

[2] The matter was allocated to my Chambers to determine whether the application was made within time and, if not, whether an extension should be granted. I issued directions with respect to the filing of material and scheduled the matter for hearing on 21 September 2021. On that occasion, Ms Hunt appeared and gave evidence on her own behalf. Damian Pearce (Operations Manager) and Michelle Wiemers (Human Resources) appeared on behalf of Bretcon. Mr Pearce also provided evidence. Unfortunately, Martin Cavanagh (Ms Hunt’s father) and Martyn Flint (Bretcon’s Governance and Compliance Manager), were unable to attend. As will become apparent, their evidence is important to understanding key issues in dispute, so I set the matter down for further hearing on 30 September 2021.

[3] On that occasion, Ms Hunt appeared again with Mr Cavanagh, who gave evidence. Mr Pearce and Ms Wiemers attended with Brett Dixon, the owner of Bretcon, who gave evidence on behalf of the company. Mr Flint was still unable to attend due to health reasons. He provided an email (rather than a sworn statement as directed), an extract of which is included below. I took the evidence of Mr Dixon but asked that Bretcon inform me when Mr Flint may be available to give evidence. Considerable time has since been given to try and allow for Mr Flint’s evidence to be provided. To date, Mr Flint remains on leave.

[4] Rather than delay the proceedings any further, my Chambers contacted the parties on 10 November 2021 and asked if they agreed that a decision should be made in the absence of Mr Flint’s evidence. Both parties consented to that course.

Evidence

[5] Ms Hunt had been employed by the Respondent since 12 April 2021. She says that she was notified of her dismissal on 22 July 2021, though states that her dismissal was effective on 8 July 2021.

[6] On 25 June 2021, Ms Hunt tried to contact Mr Pearce, her manager, at about 7am to inform him that she was unwell and unable to work. She then turned her phone off.

[7] Later that day, Ms Hunt turned her phone back on and noticed several missed calls from Mr Flint. She returned his call at approximately 1.03pm, as she was arriving at her doctor’s appointment. She spoke with Mr Flint who, she says, offered her three options with respect to future employment: that she could resign, be terminated, or the position could be made redundant to enable her to quickly access government unemployment benefits. Ms Hunt was very upset by this. She says that during this conversation Mr Flint agreed her termination was being considered because of the bullying she had endured during her employment from her direct manager and Bretcon did not wish to hold the manager accountable. Consequently, she claims that Mr Flint asked what the best termination method would be for her. She requested time to think about the situation given how emotional she was. Mr Flint asked her to call him back with a decision. Given Ms Hunt’s emotional state, she asked her father, Mr Cavanagh, to call Mr Flint back and advised him that she was attending a doctor’s appointment and would have a medical certificate for that day.

[8] Mr Cavanagh’s evidence was that Ms Hunt called him and relayed her conversation with Mr Flint. She was very upset. He offered to speak with Mr Flint, not as Ms Hunt’s representative, but as her father. Mr Cavanagh recalled telling Mr Flint that he had an obligation to provide a safe place of work for all staff. He referred pointing out that Ms Hunt had made complaints about Mr Pearse previously to both Mr Flint and Mr Dixon. Mr Cavanagh says that Mr Flint’s response was “uha”, which he took as Mr Flint acknowledging what he said as true.

[9] Mr Cavanagh says that Mr Flint reiterated to him that Ms Hunt had three choices: termination, resignation or redundancy. Mr Cavanagh said that he told Mr Flint to tell Mr Dixon that he could give him a call to discuss the matter. Mr Cavanagh told Mr Flint that if Bretcon were not going to do anything about Mr Pearce’s conduct, then Ms Hunt would raise the matter with the Fair Work Commission. Further, Mr Cavanagh formed the view that Ms Hunt’s termination was initiated because Ms Hunt had refused to participate in a plan to get rid of another employee. At this point, Mr Cavanagh said that Mr Flint “did a backflip” and started talking a lot about the redundancy option for Ms Hunt. That said, Mr Cavanagh said that it was clear there were three options available to Ms Hunt on 25 June 2021 and that his conversation with Mr Flint ended without resolution. His evidence was that while it was clear that Ms Hunt’s employment was coming to an end, it was unclear to both him and his daughter when or how that was going to transpire. Mr Flint had indicated to Mr Cavanagh that he would draft the redundancy letter, however because that was never provided to Ms Hunt, she was not aware that her employment had in fact been terminated.

[10] In fact, Ms Hunt stated that it was not until she contacted payroll on 22 July 2021, that she was advised by return email that payroll had been advised that her position was made redundant. She stated that as at the date of the hearing, she had still not received any formal notification from Bretcon.

[11] Ms Hunt thus submits that on the basis of her and her father’s evidence it is clear that each of their conversations with Mr Flint ended without an outcome.

[12] Bretcon’s evidence with respect to these events is very different.

[13] Mr Dixon’s evidence was that there was a management meeting on or around 24 June 2021. Among other things, a discussion was had about Ms Hunt’s employment. Mr Dixon stated that Ms Hunt was no longer required as an employee because the project she had been working on had come to an end. As she was still within her probation period, Mr Dixon told Mr Flint to terminate her immediately and ask her to return her laptop. Mr Dixon understood that Mr Flint followed his instructions and spoke with Ms Hunt on 25 June 2021. Mr Flint called Mr Dixon after the call and said words to the effect of “it had been done” and the Ms Hunt would return the laptop. Mr Dixon, on behalf of Bretcon, submits that Mr Flint – following his instructions – would have made it clear that Ms Hunt’s employment had ended.

[14] However, without Mr Flint’s evidence, it is difficult for Bretcon to provide a cogent version of events that differs from the evidence given by Ms Hunt and Ms Cavanagh. While Mr Dixon was firm in his convictions about his instructions to Mr Flint, without direct evidence from Mr Flint, Ms Hunt’s version of events remains unchallenged.

[15] To the extent that Mr Flint was able to engage in these proceedings, he provided the following response to an email of Ms Weimers dated 22 September 2021, after she had requested that he provide a sworn statement and attend the hearing. The following response was not sworn and simply took the form of an email from Mr Flint:

•  “I will not be available on the 30th September as I am currently on leave due to health reasons

•  I informed Zoey that she was employed by Damian and that I had no authority to change who she reports to and that if the was a formal complaint I would forward it on to the owner.

•  The discussions both involved the return of laptop and phone, and since I was working in the yeppoon office it was agreed it could be either be dropped off by her father, or delivered to the yeppoon office. This was reiterated in the conversation with her father.

•  There was in my mind no doubt that Zoey fully understood her employment had ended and that this was in fact with immediate effect. Access to emails and server was disabled that afternoon which would also clarify the matter”.

[16] On 26 June 2021, Ms Hunt says she had a follow up appointment with her doctor and a workers’ compensation medical certificate was issued and emailed to Mr Flint. She later received two week’s pay, along with her outstanding annual leave entitlements.

[17] Ms Hunt did not hear anything further from Bretcon at the time. When the Workers’ Compensation team contacted her about her claim, they said it was not unusual for a company to pay annual leave entitlements while claims were pending. No further correspondence was received from Bretcon or any person from Bretcon to formally advise her of the termination.

[18] She conducted some work for Bretcon in the first week of July. She took a work phone call and emailed someone from Bretcon.

[19] Ms Hunt’s evidence was that it was not until 22 July that she became aware of her redundancy. Ms Hunt had emailed Bretcon asking what her employment status was and received an email confirming that her position had been made redundant. She had made the enquiries because her workers compensation claim had not been approved and she had seen two positions at Bretcon advised on Seek. While Ms Hunt says she could have performed either role, she says one position in particular was identical to the one she had held but with a different title.

[20] Ms Hunt claims that at the time of lodging her application in the Commission, she has still not received formal notification or separation certificate notifying her of the date of termination and/or the calculation total of her final pay.

[21] Bretcon submits that, on 25 June 2021, Martyn Flint called the Applicant and informed her that as part of a corporate restructure, there would be no ongoing requirement for a specialist recruitment officer and, on that basis, she was to be terminated, effective immediately. Bretcon submits that Mr Flint would have told Ms Hunt that she was not expected to work the one-week notice period. On 1 July 2021, Ms Hunt was paid her wages for the week of 20 June 2021 and, on 8 July 2021, was paid a week’s pay in lieu of notice and her accrued annual leave. Bretcon contends that Ms Hunt would have been in no doubt that her employment had ended as she was clearly advised verbally on 25 June 2021. That is so notwithstanding the lack of a letter confirming same.

[22] Bretcon also submits that because Ms Hunt lodged a complaint with the Australian Human Rights Commission on 27 July 2021, she is unable to bring this application.

When was Ms Hunt’s employment terminated?

[23] The answer to this question lies somewhere in the phone conversations between Mr Flint, Ms Hunt and Mr Cavanagh. Mr Dixon’s evidence was clear that he told Mr Flint to terminate Ms Hunt, effective immediately. He says Mr Flint called him following his conversation with Ms Hunt, saying that he had done what he was told. Ms Hunt and her father both gave direct evidence that in each of their conversations with Mr Flint, he offered the Applicant three options regarding how her employment would come to an end. In other words, it was clear that her employment would be ending but it was unclear how that was to transpire. Ms Hunt was then paid out her entitlements in subsequent weeks.

[24] Given the evidence set out above, I am satisfied that Ms Hunt’s employment was terminated on 25 June 2021.

Was the application lodged within time?

[25] Section 366(1) of the Act requires that an application to deal with a general protections dispute involving dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.

[26] If Ms Hunt’s employment ended on 25 June 2021 and the Commission received her application on 26 July 2021, it follows that she was nine days outside of the 21 days required under s.366(1) of the Act. If that is so, for the Applicant’s application to proceed, she must be given an extension of time under s.366(2) of the Act, which unsurprisingly, Bretcon opposes.

Should a further period be granted?

[27] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[28] The test of “exceptional circumstances” establishes a high barrier for an applicant. 1 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), 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.”  2

[29] Ms Hunt’s submissions may be summarised as follows:

(a) the Applicant was not aware that her employment had been terminated until on or around 22 July 2021 when she contacted payroll;

(b) she has never received any written confirmation that her employment had been terminated; and

(c) therefore, she was not aware that she needed to lodge a general protections application involving dismissal.

[30] Bretcon claims that there are no exceptional circumstances in this case. In short, they submitted that:

(a) the Applicant had not adequately explained the reason for the delay;

(b) the Applicant could not have had any doubt following her conversation with Mr Flint on 25 June 2021 that her employment was being terminated because her position was terminated;

(c) the Applicant’s father was also told on 25 June 2021 that the Applicant’s position was terminated, effective immediately;

(d) the termination took place and was communicated to the Applicant on 25 June 2021, notwithstanding the lack of any written confirmation;

(e) the application is without merit; and

(f) accordingly, the matter should be dismissed.

Consideration

[31] 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 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“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.” 5

[32] For the reasons outlined below, I am satisfied that Ms Hunt’s circumstances do in fact qualify as exceptional and warrant permission being granted for an extension of time. The primary reason for this is the lack of clarity about the date of termination of Ms Hunt’s employment. While I am not strictly bound by the rules of evidence, I am of the view that more weight must be placed on the evidence given by witnesses, under oath, in the Commission rather than on emails or other unsworn documentation.

[33] I have no doubt that Mr Dixon – as he said in evidence – gave Mr Flint clear instructions to terminate Ms Hunt’s employment and that Mr Flint, following his conversation with Ms Hunt and her father, told him that had occurred. The notations in Mr Flint’s email suggest that Ms Hunt and her father should have been aware that Ms Hunt’s employment was ending.

[34] That position is not challenged by Ms Hunt. Indeed, both she and her father accept that Mr Flint made it clear that the Applicant’s employment would be ending. However, their evidence was that how or when this was to occur was not explicitly communicated to them with any sense of finality. Rather, they say that Mr Flint had told Ms Hunt to consider three options to bring about the end of her employment. It may be that Mr Flint was trying to soften the blow for Ms Hunt by affording her this opportunity, given that different methods of termination have different connotations and implications for individuals. Mr Flint’s email is silent as to whether these options were ventilated and, if so, whether a resolution was reached. In any event, a four dot-point email response cannot displace the evidence given by Ms Hunt and Mr Cavanagh in the hearing of this matter. In the absence of any direct evidence from Mr Flint, I must give preference to the accounts of those conversations given by Mr Cavanagh and Ms Hunt. The evidence before me suggests that Mr Flint was not as unequivocal terms as Mr Dixon’s instructions may have envisaged or hoped.

[35] Consequently, in the absence of any written communication to Ms Hunt that her employment had in fact terminated, I am satisfied that Ms Hunt was not aware that the final decision had been made to terminate her employment as of 25 June 2021. In fact, the evidence suggests that she was not formally told of the termination of her employment until 22 July 2021 when she spoke with someone from payroll. Ms Hunt then lodged her application within four days of receiving that information.

[36] I am not satisfied that allowing the extension of time would unduly prejudice Bretcon or that any of the other factors in s.366 of the Act suggest that an extension ought not be given.

[37] For the reasons set out above, I am satisfied that the reasons for the delay articulated by Ms Hunt qualify as “exceptional”.

[38] Accordingly, I order that the extension of time be granted.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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

 2   [2019] FWC 25.

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].

 5   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd[2018] FWCFB 901 [39].