DECISION

Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute

Ms Shelley Brown
v
Husky Wood Fired Pizza Restaurant T/A Budged Pty Ltd Huskisson Au
(C2019/2111)

Application to deal with an unlawful termination dispute.

[1] On 31 March, 2019, Ms Shelley Brown (“the Applicant”) lodged an application pursuant to s.773 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant was employed, she claimed, by Husky Fired Pizza Restaurant T/A Budged Pty Ltd Huskisson Au (“the Respondent”). The commencement date of her employment with the Respondent is not known, however the Applicant submits that her employment was terminated by the Respondent on 27 November, 2018, with the termination taking effect somewhat later on 10 February, 2019.

[2] Applications for unlawful termination applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow.  Taking as the point of calculation the later date when the dismissal allegedly took effect, being 10 February, 2019, an application for a remedy should have been lodged by no later than 3 March, 2019. The application was therefore lodged outside of the time prescribed and was, in effect, lodged 28 days after the last day on which such an application could have been made.

[3] I note however, that it may very well be that the date for the proper calculation of the delay is the date the Applicant submits that her employment was terminated by the Respondent, being 27 November, 2018, resulting in the application being 103 days late. However, as the Respondent has not put in issue the date the termination took effect being 10 February, 2019, I will proceed to determine the matter using that date.

[4] On 3 May, 2019, I issued Directions from my Chambers to the parties to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge her application (“the Application”) would be determined. The Directions provided for a timetable for the filing of Outlines of Submission from both parties addressing the out of time issue, together with any witness statements and other documentary material upon which each party intended to rely. Paragraph 4 of the Directions provided that the Application would be determined upon the materials filed.

[5] The Applicant failed to comply with the Directions of 3 May, 2019, and did not file her Outline of Submissions pursuant to Direction 1 within the timeframe. My Chambers thereafter made several attempts to contact the Applicant to follow up her Outline of Submissions. On 19 May, 2019, the Applicant advised my Chambers that she had been unwell and sought further clarification as to the requirements for compliance with my Directions. My Chambers specifically directed the Applicant to the five (5) factors that must be taken into account outlined in paragraphs (a) to (e) of s.366(2) of the Act, and also directed the Applicant to an online copy of the Commission’s Bench Book for further guidance. I then granted an extension of time for the filing of Submissions for the parties.

[6] Both the Applicant and the Respondent complied with the amended Directions for the filing of evidence. In particular:

(a) On 19 May, 2019, the Applicant filed an outline of Submissions (“the Applicant’s Submission”) taking the form of a one page, one paragraph, e-mail to my Chambers;

(b) On 27 May, 2019, the Respondent filed a brief Outline of Submissions (“the Respondent’s Submission”); and

(c) On 30 May, 2019, the Applicant filed an Outline of Submissions in Reply (“the Applicant’s Reply Submission), taking the form of a one paragraph reply e-mail, together with two written references from Ms Amanda Haiki and Ms Elisha Humphries.

[7] On 1 June, 2019, and beyond the amended Directions for the filing of evidence, the Applicant sent an e-mail to my Chambers that detailed allegations against the Respondent. This email was important as it contained the only real statement of the chronology and explanation for the delay, and was as follows:

“Just in regards to Craig's claim that i do this kind of thing to all my employers is totally untrue and in fact i wasnt planning on doing anything. However after my last night there i was extremely upset which made me flip into a psychotic state of mind which led to me having some crazy out burst on facebook i don't actually remember wat i wrote but in the morning i woke up got on facebook and deleted my post without reading it. A few days later the police came to my house i wasnt there but my husband was he explained the situation to the police to which the lady police officer told my husband they can't say stuff like that that's discrimination my husband agreed they then said we still need to see her. The next night they came i was home they asked if i know wat it was about i said yes they said you can't put stuff like that on social media i said i dont remember wat i wrote but that i wouldn't do it again they asked me how i was doing i replied not that good they asked me if i thought i needed to go to hospital i said probably but i don't have that luxury if i don't work my family don't eat so I've got to try keep it together somehow they were very nice and they were sympathetic to my situation and wished me well they turned to leave then officer burrell turned back to me and said you know shelley there are laws in place to stop people like that treating people like you that way i nodded he said get them where it hurts get onto fairwork i smiled and said yeah maybe I'm not really up for that got to concentrate on keeping it together right now he nodded and left. I never gave his comment another thought until a few months later constable burrell came into my work he recognised me straight away i didn't he said Shelley how are you i said good puzzled then it dawned on me who he was and i smiled he said you look better than last time i saw you i replied yes feeling much better now the good good did you end up doing anything about the pizza place i said no he said your silly woman i said its to late now anyways he said i dont know you should look into it there's nothing we could have done for you but fairwork would have been able to do something. I just nodded we said goodbye and i went home that night thinking he's right they shouldn't be able to get away with wat they have done to me so i did some reading decided to put my complaint through not really thinking it would go anywhere because it's my word versus theirs and knowing the type of people they are it would be just my word against theirs. Then i read wat Craig sent i yep i was right true to his form nothing but lies from him trying to save his and Taras asses because they know they treated me badly but they assume i can't prove otherwise so i put up a post on gave book asking for anyone whom had dealings with the husky pizza restaurant could they please private message me. And i was surprised by the number of people who got untouch with me i don't know any of these people as you will read in our conversations but they all draw the same picture about Craig and Tara how they were poorly treated to which I'm sure you will realise who the real liar is. I didn't start this claim for any financial gain it was to primarily to put a stop to they way they treat people but after reading all these messages about how all these people have been treated i feel that financial compensation is going to be wat will ultimately be a eye opener to these horrid pair cuz anyrhing less than financial loss to them would just be in their eyes something they would joke about and would enforce their ideation of being untouchable and therefore no lesson would be learnt and they would continue treating staff as v they always have. This as you'll learn from reading past staff experiences has been going on for years some of these people worked there years ago and clearly they haven't changed their ways something needs to be done ands something fast before they do more damage to more people. Please let me know where to forward on past employees statements”.

[8] Based on the materials filed and provided, I have determined that the Applicant should not be granted a further period within which to lodge her application. These are the reasons for that decision.

[9] The matters that I am required to take into account in considering whether or not I am satisfied that there are exceptional circumstances are contained in s.774(2) of the Act:

“774 Time for application

…

(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 termination; 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.”

[10] It is clear from the structure of s.774(2) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively, and to ask whether collectively the matters show exceptional circumstances.

[11] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account all the factors in s.774(2) of the Act that there are exceptional circumstances.

THE FACTS

[12] The facts leading up to the Applicant’s termination, if it did occur, are largely disputed. The Applicant lists several incidents which allegedly occurred leading up to her dismissal. These allegations are not corroborated or refuted by the Respondent. The Respondent maintains that it had supported the Applicant and her difficulties with her mental health throughout the course of her employment, until a certain incident arose where the Applicant had allegedly threatened to shoot the Manager, Ms Glasson. The email at [7] above supports the assertion that an incident occurred and police were called.

CONSIDERATION

(a) Reason for the delay

[13] The Applicant, in her Form F9, attributes the delay in lodging her Application with the Commission to her diminished mental health. In her Outline of Submissions, the Applicant attributes her “unstable mental health condition” directly to the “unfair treatment” she received from the Respondent and submits that that her mental health only “got worse” the longer she worked with the Respondent.

[14] Following her dismissal, the Applicant submitted that she “couldn’t function” and was “unable to shower myself hardly able to work i was on the brink of admitting myself into hospital because i just couldnt cope with life or anything really i was having thoughts of suicide constantly i felt worthless and that i was a failure they took everything i have worked so hard the last 10 years to become more attuned to my illness and keep myself well and turned my life into hell.”

[15] While the Applicant submitted in her Form F9 that she was not entirely back to normal, she was “well enough” to proceed with her Application at the time of lodgement.

[16] However, the Applicant, in her correspondence of 1 June, 2019, to my Chambers curiously, and probably inadvertently, provided a somewhat different reason for the delay. That is that she was prompted twice by a “Constable Burrell”, the second time while he was apparently attending her new workplace, to lodge an Application with the Commission. After the second prompt, the Applicant alleges that she “went home that night thinking he’s right they shouldn’t be able to get away with wat they have done to me so i did some reading decided to put my complaint through not really thinking it would go anywhere because it’s my word versus theirs…”.

[17] Regrettably, I do not find the Applicant’s reason to be acceptable to explain the whole of the delay. While it is clear that the Applicant was suffering from mental health issues at the time of her dismissal, that illness does not explain the totality of the delay. The Applicant does not submit that she lacked knowledge of the 21 day statutory requirement for which such an application is to be lodged, and it seems that the Applicant had never intended to lodge her Application until she was prompted, when she was apparently subsequently employed. I am not persuaded that the Applicant’s mental health issues were the sole reason for the late lodgement of her Application. As such, this consideration weighs against the Applicant.

(b) Action taken by the person to dispute the dismissal

[18] Neither the Applicant nor the Respondent made any submissions in respect of this consideration. As such, this consideration is neutral in my determination.

(c) Prejudice to the employer

[19] Neither the Applicant nor the Respondent made any submissions in respect of this consideration. As such, this consideration is neutral in my determination.

(d) Merits of the application

[20] Again, neither the Applicant nor the Respondent made any submissions in respect of the merits of the application. I am satisfied that based on the material, and again, accepting that the material has not been tested by way of cross-examination, the Application is without merit.

[21] The Applicant submits that she was dismissed due to a temporary absence from work because of illness or injury and discrimination based on a physical or mental disability. The Applicant believed that she was terminated when she had attempted to make contact with Ms Glasson via Facebook Messenger to inquire about her shifts.

[22] This is an unlawful termination dispute. In order for the Applicant to maintain such a claim, the Applicant must show that her employment was, in fact, terminated by the Respondent. Section 773 of the Act provides the following:

“Application for the FWC to deal with a dispute

If:

(a) an employer has terminated an employee's employment; and

(b) the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee's employment was terminated in contravention of subsection 772(1);

the employee, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[23] Neither the Applicant nor the Respondent submitted that the Applicant’s employment was terminated. The Applicant, in her Form F9, submits that she “didn’t get officially fired.” This is a claim also maintained by the Respondent, who submits that it “did not try to dismiss Shelly as I tried to work with her and as I am not a qualified mental health expert I did not know if her behaviour was from her mental illness or not”. It was simply the belief of the Applicant that her employment was terminated when she attempted to make contact with Ms Glasson via Facebook Messenger to inquire about her shifts. I therefore cannot be satisfied that there was ever a termination of the Applicant’s employment by the Respondent.

[24] It is not apparent to me as to why the Applicant had assumed her employment was terminated simply because she was not able to contact Ms Glasson via Facebook Messenger, particularly as the Applicant concedes that she was never “friends” with Ms Glasson on Facebook in the first place. It is also not apparent as to why the Applicant, had she thought she had been dismissed, did not make further inquiries with the Respondent in person, by telephone or e-mail, or any other such means, to confirm whether she had indeed been dismissed.

[25] In these circumstances, it simply cannot be said that the Application is of merit if a termination had not occurred. There will be considerable difficulty for the Applicant to establish the elements of the contravention had she not been dismissed. For this reason, the merits of the Application weigh against the Applicant.

[26] A further factor that may weigh against the merits of the Application, but on which I have placed no weight due to the uncertainty of the evidence, is the nature of the Respondent. The Applicant names the Respondent as “Husky Wood Fired Pizza Restaurant T/A Budged Pty Ltd Huskisson Au”. The Australian Securities and Investments Commission database records a company named “Budged Pty Ltd” with an ACN of 145 020 471.

[27] The Respondent has not challenged its characterisation by the Applicant, but if it is incorporated, then s.723 of the Act would seem, on the case alleged, to preclude the Applicant proceeding by way of s.773. Section 723 limits s.773 applications to non-national system employers, and provides:

“A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”

(e) Fairness as between the person and another persons in a like position

[28] Neither the Applicant nor the Respondent made any submissions in respect of this consideration. As such, this consideration is neutral in my determination.

CONCLUSION

[29] It is clear to me that the absence of an acceptable reason for the whole of the delay, and consideration of merits of the Application, substantially weigh against the conclusion of exceptional circumstances.

[30] I am therefore not persuaded that there are exceptional circumstances. I order that the Application be dismissed.

DEPUTY PRESIDENT

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