Ami Biersteker v Jules & Ginger T/A Jack’s Barber [2021] FWC 4850

1 Fair Work Act 2009 s.394—Unfair dismissal Ami Biersteker v Jules & Ginger T/A Jack’s Barber (U2021/4475) COMMISSIONER SIMPSON BRISBANE, 6 AUGUST 2021 Application for unfair dismissal –application lodged out of time –whether an extension of time should be granted – Extension refused [1] On 25 May 2021, Ms Ami Biersteker filed an application for unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (the Act) alleging her employment with Jules & Ginger T/A Jack’s Barber (the Respondent) was terminated unfairly. [2] Part 1.4 of the Form F2 application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Ms Biersteker answered on the Form F2 “No” and provided that the reason for the delay was: “I've been put on medical leave because of work stress. My second week of medical was when my employer shut the business down. I know she's only shutting it because she owes me 2 years of unpaid wages. Which my union is taking her to court. I didn't realise I could apply for it until now” [3] The matter was allocated to me to determine whether an extension of time should be granted to Ms Biersteker to file her unfair dismissal application. I issued directions for the filing of material and the matter was listed for Hearing by telephone on 16 July 2021. LEGISLATION [4] Section 394 of the Act provides: (2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3). (3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: [2021] FWC 4850 DECISION -- 1 of 9 -- [2021] FWC 4850 2 (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.” EVIDENCE AND SUBMISSIONS [5] Ms Julie Francis filed a witness statement for the Respondent. [6] Ms Francis said for the month of April, the store's revenue was about 26% of the January revenue, having been steadily declining through February and March. Ms Francis said she decided to close Jack's Barber because it was not generating enough income to cover overheads. [7] Ms Francis said this reduced revenue was due to various factors including reduced hours of operation and store closures due to staff absences. [8] Ms Francis said as a result of her decision, the Applicant's position was no longer required to be performed. [9] Ms Francis said that from early in 2021, the Applicant was increasingly absent from work, which contributed to a reduction in the revenue that the business was making as Ms Biersteker was the primary barber providing services, in 2021. [10] Ms Francis said the Applicant was absent (or working reduced hours) on the following dates: • February 19,20 • March 2,3,4,5,6,12,13,17,18,19 • April 8,10,13,14,15,16,17,20,21,22 [11] Ms Francis said this represented 50% of her ordinary working hours across this period, which meant that the store was closed for a significant portion of its usual trading hours as Ms Francis was unable to arrange a suitable temporary replacement or recruit another suitable staff member. [12] Ms Biersteker filed a response to Ms Francis’ statement. Ms Biersteker said the dates for March 2,3,4,5 and 6 was in relation to a younger sibling, who was still living in Canada, -- 2 of 9 -- [2021] FWC 4850 3 who had passed away suddenly. Ms Biersteker said she was absent on March 12 and 13 as she was attending her sibling’s funeral remotely from Canada. [13] Ms Biersteker said for 17-19 March they were pre-existing holidays which she had requested. [14] Ms Biersteker said on 10 April she was at work. She said on this day Ms Francis came into the Barber shop and yelled at her saying “I can’t have you being sick anymore and need more from you. We are all going through the same thing the pandemic.” [15] Ms Francis said by the time she decided to close the store, the Applicant had exhausted her accrued personal leave, as well as her accrued annual leave entitlement, and was on unpaid leave. [16] Ms Francis said she made at least 2 unsuccessful attempts to contact Ms Biersteker by telephone, on 22 April 2021, and so she sent Ms Biersteker a text message notifying her of the closure of Jack's Barber which meant that her employment would be ending as well. [17] Ms Francis said she asked Ms Biersteker to come in to pick up her equipment and return her keys. Ms Francis provided copies of the text message to her statement. [18] Ms Biersteker said she thought that this message at the time was just another way Ms Francis was trying to contact her. Ms Biersteker said Ms Francis had no actual evidence that she was closing the business on 22 April 2021. [19] Ms Biersteker said she contacted her Union for advice on what she should do following the text messages and that they advised her not to respond or to contact Ms Francis. [20] In response to returning her keys for ‘Jack Barbers’, Ms Biersteker said in all the time she had worked for Ms Francis, she had always had the locks changed. She said regardless of whether staff had returned keys or not, Ms Francis got the locks changed. Ms Biersteker said therefore once again she just took it that this request was Ms Francis trying to make contact with her. [21] Ms Biersteker submitted the closure of Jack’s Barber did not mean that her employment had ended. Ms Biersteker submitted Ms Francis had a salon with plenty of room and that she had the clientele. Ms Biersteker said Ms Francis had already said that she had wanted to open up a hairdressers and barber shop under her house. Ms Biersteker submitted Ms Francis was not always very consistent with her information or direction she was going with her business ideas as she changed her mind a lot. [22] Ms Biersteker said the reality of losing her job, did not come until she received a ‘backdated’ Centrelink separation certificate via an email, that was two weeks and one day later. [23] Ms Biersteker submitted that in fact she did not know she had actually lost her job until she received an email dated the 6 May 2021. Ms Biersteker submitted therefore her application for unfair dismissal was actually not out of date. -- 3 of 9 -- [2021] FWC 4850 4 [24] On 12 July 2021, Ms Biersteker sent correspondence to my chambers that indicated she wished to change her position on the application being out of time. [25] Ms Biersteker submitted that at the time of lodging her application, she thought that because Ms Francis had sent her a text on 22 April using the same wording used on her separation certificate, ‘well maybe that is when I had lost my job’. However, Mr Biersteker submitted that even though Ms Francis sent her a text telling her she had shut Jack Barbers, she did not believe she had lost her job on 22 April, she just believed it was another way Ms Francis was trying to get Ms Biersteker to contact her. [26] Ms Biersteker submitted that there was no clear direction for her to form the belief that she had lost her job. Biersteker submitted Ms Francis did not follow immediately with a ‘Separation Certificate’. Ms Biersteker submitted therefore that the date of her dismissal was the date she received her Separation Certificate being 6 May 2021, making the application within time. [27] During cross-examination, Ms Biersteker was taken to the email provided to the Commission1 that was sent from Ms Biersteker to Ms Francis on 22 April 2021. The text message read as follows: “Dear Jules I am off on sick leave and will not be able to drop the key until tues. Can you please send me a letter of employment separation for me records? Thanks, Ami” [original text kept] [28] Ms Biersteker accepted she sent this text message to Ms Francis however did not accept this meant she understood her employment was coming to an end. [29] Ms Biersteker was asked why she asked for an employment separation certificate if she did not believe her employment had ended. Ms Biersteker appeared to give evidence that when she called Centrelink, they told her she required a separation certificate and therefore that meant she thought she was still employed by Ms Francis until she obtained this certificate. [30] Ms Biersteker ultimately accepted that the reason she called Centrelink was because she thought she was unemployed. [31] Ms Biersteker was asked why she dropped the keys off if she thought she was employed. Ms Biersteker’s evidence was not clear on this point but appeared to indicate she thought it was a game Ms Francis was playing and that she was still employed until she had “proof”. [32] The Respondent submitted Ms Biersteker was terminated on 22 April, and that Ms Biersteker was notified of this and Ms Biersteker’s response agreeing to return keys and requesting a separation certificate indicated Ms Biersteker understood her employment ended. -- 4 of 9 -- [2021] FWC 4850 5 [33] The Respondent submitted the Separation Certificate provided that the date of termination was 22 April 2021. The Respondent also submitted that at no time during the proceedings until 12 July did Ms Biersteker raise any confusion around the date of her termination. Conclusion on date of termination [34] I do not accept the Applicant’s argument that she was unaware of her dismissal on 22 April. It is clear from Ms Francis’ text message that the Applicant’s job was no longer required. It is also clear from Ms Biersteker’s reply by text message that this was her understanding. The fact Ms Biersteker requested a separation certificate, and agreed to return the keys cannot lead to any conclusion other than that she was aware she was no longer employed. [35] I therefore find the Applicant became aware of her dismissal on 22 April 2021, making her unfair dismissal application 12 days out of time. WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES [36] The Respondent submitted there are no exceptional circumstances which warrant an extension being granted by the Commission. [37] Ms Biersteker sent correspondence to the Commission outlining her position on why exceptional circumstances arose in her case and why an extension of time should be granted. Reason for the delay [38] Ms Biersteker said the reason for the delay in filing the application was because she was put on medical leave because of work stress, and that she was not aware of an out of time claim. Ms Biersteker said she was not aware that a government department that handles ‘unfair’ work dismissal even existed. [39] The Respondent submitted that if the reason for the delay is ignorance of the 21-day timeframe, this is not an exceptional circumstance. The Respondent referred to Nulty v Blue Star Group Pty Ltd2 and Woolworths v Lin.3 [40] I accept that the fact Ms Biersteker was not aware she was able to make an unfair dismissal claim is not an exceptional circumstance. [41] The Respondent submitted that where a medical reason is relied on to explain the delay, evidence should be provided in a form that is not generalised and which speaks to the employee's capacity to lodge an unfair dismissal application during the delay period i.e. showing that the employee was debilitated for the majority of the period.4 [42] The Respondent submitted that where reliance is placed on anxiety and stress from the dismissal, it must be severe and out of the ordinary to justify a delay, and referred to Marija Hussey v Springmount Services Pty Ltd T/A Springmount Services.5 [43] The Respondent submitted that Ms Biersteker has not provided any evidence of any injury or medical condition or incapacity in support of her reason for the delay being "medical -- 5 of 9 -- [2021] FWC 4850 6 leave due to work stress". The Respondent submitted that the WorkCover claim was rejected because there is no injury. The Respondent submitted Ms Francis received correspondence from WorkCover to this effect on 1 June 2021 and provided a copy of this correspondence to the Commission. [44] Further, although the Respondent accepts that the Applicant was absent from work on leave at the time of dismissal, it submitted that the circumstances and any medical incapacity from the period from 23 April 2021 to 25 May 2021 when the application was filed are entirely unknown. [45] The Respondent submitted that as a result, there is no evidence from Ms Biersteker establishing any medical condition or associated debilitation that would explain the delay. [46] It must be acknowledged that Ms Biersteker did experience a personal tragedy in her family in early March, which would in no doubt have had a significant impact on her mental state during this time. [47] Ms Biersteker returned to work for periods following this tragedy but had significant periods of time off during this time. [48] However, based on the medical evidence provided by Ms Biersteker I accept the Respondent’s submission that it falls short of demonstrating that Ms Biersteker was incapable of filling out and filing an unfair dismissal application between 13 and 25 May 2021. [49] I therefore find that the reason for the delay goes against granting an extension of time. Whether the person first became aware of the dismissal [50] Ms Biersteker said it was during her second week on medical leave when her employer Ms Francis sent her a text stating she was shutting down the business. Ms Biersteker said she was not given a formal employment separation. [51] Ms Biersteker provided a copy of the text message she received from Ms Francis that was sent on 22 April 2021 and a copy of the separation certificate she received from Ms Francis on 6 May 2021. [52] Ms Francis gave evidence that following at least two unsuccessful attempts to contact Ms Biersteker by telephone, on 22 April 2021 she sent the Applicant a text message notifying her of the closure of Jack's Barber which meant that her employment would be ending as well. Ms Francis said she asked her to come in to pick up her equipment and return her key. [53] The Respondent submitted this demonstrated Ms Biersteker was notified of her dismissal on 22 April 2021. For reasons explained in more detail above, I accept Ms Biersteker was notified of her dismissal on 22 April 2021 and understood that to be the case. This weighs against extending time. Steps taken to dispute the dismissal -- 6 of 9 -- [2021] FWC 4850 7 [54] Ms Biersteker said on the day she became aware she was able to make an unfair dismissal claim, she first spoke to her Union so she could better understand what this was and what it meant, and to see if she had a claim to make. [55] Ms Biersteker said on the same day that she spoke to her union she put though her claim. Prejudice to the employer [56] There was no direct evidence given on this point. I am of the view that 12 days delay is not significant and would not likely cause prejudice to the employer. This weighs in favour of granting an extension. Merits of the application [57] Ms Biersteker said Ms Francis did not give her any reason for her dismissal, other than she was shutting down her business which Ms Biersteker was working in. [58] Ms Biersteker said it was her belief that Ms Francis has shut down the barber shop because she owes Ms Biersteker a lot of unpaid wages. Ms Biersteker submitted if she was not in the business working, then Ms Francis had no business. [59] Ms Biersteker said she had asked Ms Francis many times for more staff, and while her agreeable texts back to her or her verbal conversations indicated that she was going to do this, she never did. [60] The Respondent submitted Ms Biersteker’s employment was terminated by reason of redundancy as a result of the closure of the business. [61] The Respondent submitted it decided to close Jack's Barber 4171 because it was not generating enough income to cover overheads. The Respondent submitted this was due to various factors including reduced hours and store closures due to staff absences. [62] The Respondent submitted unfortunately, that this meant that the Applicant's job was no longer required to be performed. The Respondent submitted Ms Biersteker was notified of the termination of her employment and the reason on 22 April 2021 by way of text message. [63] The Respondent submitted it denies that it closed the business for any reason relating to unpaid wages and denies the allegations made about unpaid wages or underpayments. [64] The Respondent submitted that apart from the allegation that the employment was terminated because Ms Biersteker was owed unpaid wages (which is denied), the basis on which the dismissal is said to be unfair is unclear. [65] Ms Francis gave evidence that the reason for the termination was the closure of the business, and the Respondent submitted there is no reason why this should not be accepted. [66] The Respondent submitted that additionally, Ms Biersteker confirms that this was the reason given to her by the Respondent. -- 7 of 9 -- [2021] FWC 4850 8 [67] The Respondent submitted that although the Respondent also runs a hairdressing salon, this business is running at full capacity and has no vacancies. [68] Respondent submitted that for the reasons above, that the application is without merit. [69] Whilst it appears there is a strong prima facie case that the business was closed because it was running at a loss, as there are contested facts not yet tested I will treat the merits as a neutral consideration. Persons in similar position [70] Neither party gave any evidence to suggest there were employees in a similar position to the Applicant. I find this to be a neutral consideration. CONCLUSION [71] Having weighed each of the matters required to be taken into account in order to determine whether there are exceptional circumstances justifying an extension of time, I am not satisfied there are exceptional circumstances in this case and on that basis the application is dismissed. COMMISSIONER Appearances: Ms A. Biersteker appearing on her own behalf. Ms E. Harvey of Thynne & Macartney appearing for the Respondent Hearing details: 2021, Brisbane: July 16 Printed by authority of the Commonwealth Government Printer <PR732596> 1 Exhibit 1. 2 [2011] FWAFB 975 at [14]. 3 [2018] FWCFB 1643 at [65]. -- 8 of 9 -- [2021] FWC 4850 9 4 Woolworths v Lin [2018] FWCFB 1643 at [65]-[67]; see also Mackael Stockhausen v Damstra Technology Pty Ltd [2019] FWC 3285 at [32]. 5 [2019] FWC 5010 at [68]. -- 9 of 9 --