Angele Mendjinon v Salem Lutheran Aged Care Facility T/A Salem Lutheran Aged Care [2018] FWC 748

[2018] FWC 748 The attached document replaces the document previously issued with the above code on 12 February 2018. The paragraph numbers have been amended to reflect chronological order, there are no longer two [1]s. Associate to Deputy President Dean Dated 14 February 2018 -- 1 of 9 -- -- 2 of 9 -- 1 Fair Work Act 2009 s.394—Unfair dismissal Angele Mendjinon v Salem Lutheran Aged Care Facility T/A Salem Lutheran Aged Care (U2017/11692) DEPUTY PRESIDENT DEAN SYDNEY, 12 FEBRUARY 2018 Application for an unfair dismissal remedy – effective date of dismissal – extension of time. [1] Mrs Mendjinon commenced employment with Salem Lutheran Aged Care Facility T/A Salem Lutheran Aged Care (the Respondent) on 5 January 2015. [2] On 2 November 2017 Mrs Mendjinon lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that she had been unfairly dismissed by the Respondent, and that her dismissal took effect on 11 October 2017. [3] The Respondent contends that Mrs Mendjinon was not dismissed and she ceased working for the Respondent on 5 July 2015. [4] As the application was made on 2 November 2017, Mrs Mendjinon’s application was filed either one day, as Mrs Mendjinon’s contended, or 830 days, as the Respondent contended, beyond the prescribed time frame. [5] The matter was listed for hearing on 6 February 2018 to determine two matters. First, when did Mrs Mendjinon’s employment end, and second, should an extension of time be granted pursuant to s.394(3) of the Act. [6] At the hearing, Mrs Mendjinon appeared on her own behalf and was assisted by a French speaking interpreter. Permission was granted pursuant to s.596 of the Act to Mr C Mills, solicitor, to appear on behalf of the Respondent. When did the dismissal take effect? [7] A termination at the initiative of the employer involves some action of the employer that is intended to bring the employment relationship to an end, or had that probable result.1 [8] The term ‘dismissed’ for the purposes of the unfair dismissal jurisdiction is defined in s.386 of the Act. Section 386 provides that a person is dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative, or the person has [2018] FWC 748 DECISION -- 3 of 9 -- [2018] FWC 748 2 resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.2 [9] Mrs Mendjinon contends that she took approved maternity leave from around 5 July 2015. She wrote to the Respondent on 10 October 2017. The letter is reproduced below as it sets out the contact she had with the Respondent between these dates. That Mrs Mendjinon made contact with the Respondent between these dates was not in dispute, however it is disputed that any period of maternity leave was approved, as was the content of the discussions that occurred. The letter is in the following terms: “Dear Madam/Sir, Re: My employment status I am writing to seek clarification in relation to my employment status with the Salem Lutheran Aged Care Facility (“Salem”) in Toowoomba. Background On 5 January 2015, I began working at Salem in Toowoomba as a casual Assistance in Nursing. After a period of three or four months in this role, I was awarded a permanent- part time contract for the same role that guaranteed a minimum allocation of about 76 hours of work per fortnight. On 20 April 2015, on discovering that I was pregnant, I advised my manager of my pregnancy and made an application for maternity leave. I followed this up with a medical certificate dated 15 June 2015. My maternity leave application was approved. On 2 July 2015, I took approved maternity leave. I gave birth on 15 July 2015. On 20 November 2015, after a period of maternity leave, I presented at Salem to advise that I was fit to resume work. However, Salem did not contact me after this date. On 16 August 2016, after a period of waiting and following up by phone, I attended Salem again to inquire about my employment; I once again advised that I was willing and able to resume work. I was informed that Salem would get in touch with me and advise me as to when I could resume work. Once again, Salem failed to contact me. I made contact with Salem to advise of my fitness and availability for work and inquire as to when I could resume work on the following dates:  17 October 2016,  18 November 2016, and  23 November 2016. On each occasion Salem advised me that I would be contacted about when I could resume work. The receptionist should have record of I (sic) attempting to contact on each occasion either face-to-face and over the phone. -- 4 of 9 -- [2018] FWC 748 3 On 28 January 2017, I attended Salem again to make the same inquiries. On this occasion, the receptionist organised a meeting for me with the manager of Salem. The meeting was scheduled for 2 February 2017 at 10:30am. I attended the meeting as scheduled where the manager advised that I would be contacted to be advised about when I could resume work. Salem again failed to contact me. Present Inquiry As there has been a significant passage of time since I took maternity leave and my numerous attendances at Salem have not yielded a definitive answer, I would be grateful if you could confirm whether I am still employed by Salem. If I am not currently employed, please state the date I was dismissed and the reason(s) for my dismissal. Please respond in writing to my inquiry within seven (7) days of receipt of this email. Should I not receive a written response to my query within seven (7) days then I will assume that Salem has dismissed me on that seventh day. You may send your response by email to [email address not published]. Yours faithfully, Angele Mendjinon” [10] On 11 October 2017, the Respondent replied to Mrs Mendjinon in the following terms: “Dear Angele, We write in response to your email of 10 October 2017 querying your employment status. We confirm your employment with Salem Lutheran Aged Care concluded on 5 July 2015, with your final pay being processed on 22 July 2015. We additionally seek to clarify several points included in your email:  You were employed effective 5 January 2015 as a part time Personal Carer with a contract for 16 hours per fortnight.  We received from you a Leave Application Form dated 20 April 2015 requesting parental leave from 5 July to 4 December 2015. This was not approved.  We received a letter from you on 14 May 2015 again requesting parental leave.  You submitted a letter from your treating doctor on 15 June 2015, which stated they would be grateful if you could obtain leave without pay from 3 July 2017.  Then-Service Manager Jason Coles wrote to you on 16 June 2015 confirming you did not meet the service eligibility criteria for parental leave and advising Salem was unable to approve your request for extended unpaid leave in lieu of parental leave. You were encouraged to contact Salem when you are ready to return to work and to ascertain whether they had a position available that would meet your needs.  Your final date of employment was determined by your stopping attending shifts and in reference to the Leave Application Form submitted 20 April 2015. -- 5 of 9 -- [2018] FWC 748 4 Your employment was not ended by Lutheran Services (then-Lutheran Community Care), rather it was ended by you removing yourself from the employment relationship. We trust this letter resolves your query.” [11] The Respondent submits that Mrs Mendjinon’s employment ended on or about 5 July 2015 when she completed her last shift. It submits she was not terminated by the Respondent on its initiative as there was no action by the Respondent to bring about the end of her employment. She was in a position where she was unable to continue working and was not entitled to parental leave, and was advised by the Respondent that she was welcome to apply for available positions in the future when she was ready to return to work. The Respondent provided a copy of a letter, dated 16 June 2015, written by the former General Manager to Mrs Mendjinon advising her that she was ineligible for parental leave and informing her that the Respondent was unable to approve her request for unpaid leave in lieu of parental leave. During the hearing, Mrs Mendjinon denied receiving this letter. [12] It is not disputed that Mrs Mendjinon has not performed work for the Respondent since July 2015. [13] On the evidence and material before me, I am satisfied that Mrs Mendjinon’s application for parental leave was not approved. I accept that the Respondent told Mrs Mendjinon that she was welcome to apply for any suitable positions that were available when she was ready to return to work, but this could not be characterised as either an offer of employment or evidence that maternity leave had been approved. I find that the employment relationship ended at the time Mrs Mendjinon ceased performing work for the Respondent, as she did not have the requisite 12 months of service to entitle her to maternity leave. It follows and I find that the effective date of dismissal was 5 July 2015. [14] I now turn to consider whether Mrs Mendjinon should be granted an extension of time for her application that was filed some 830 days outside the prescribed time. Extension of time [15] Section 394(3) of the Act provides: (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: (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. -- 6 of 9 -- [2018] FWC 748 5 [16] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant. [17] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd3 where the Full Bench said: “[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.” [18] I now deal with each of the provisions of s.394(3) of the Act. Reason for the delay [19] In her application, Mrs Mendjinon indicated that she did not make her application within time because she “was waiting for a Legal Aid Representative for advice, as to what to do (steps) to take”. She further stated that she “needed assistance from someone that has great English comprehension to help me fill the form”. [20] I find that the matters addressed by Mrs Mendjinon as reasons for the delay in lodging this application cannot be considered “exceptional”. This weighs against the granting of an extension of time. Whether the person first became aware of the dismissal after it had taken effect [21] Mrs Mendjinon submits that she became aware of the termination of her employment on 11 October 2017. The Respondent submits that Mrs Mendjinon was aware that she had no approved leave and the relationship ended when she ceased working for the Respondent before the birth of her child in July 2015. I have accepted the Respondent’s version of these events. [22] I find that this weighs against the granting of an extension of time. -- 7 of 9 -- [2018] FWC 748 6 Any action taken by the person to dispute the dismissal [23] There were no submissions or evidence as to any action taken by Mrs Mendjinon to dispute the dismissal until the lodgement of this application. This weighs against a finding that there are exceptional circumstances. Prejudice to the employer (including prejudice caused by the delay) [24] The Respondent submits that it is prejudiced by the delay as the relevant person responsible for decisions concerning Mrs Mendjinon’s employment is no longer an employee of the Respondent. It furthers submits that the recollection of witnesses would not be reliable given the length of the delay. [25] Given the significant period of time which has elapsed between the termination of Mrs Mendjinon’s employment and the filing of her unfair dismissal application, I am satisfied that the Respondent would be exposed to prejudice in the event that an extension of time was granted. This factor weighs against the extension of time being granted. The merits of the application [26] For the purpose of determining whether to grant an extension of time, the Commission ‘should not embark on a detailed consideration of the substantive case.’4 [27] Mrs Mendjinon was unable to continue working for the Respondent following the birth of her child. She did not have the requisite period of service to be eligible for parental leave. The Respondent submits it was unable to approve an extended period of unpaid leave. [28] On the material before me, I am unable to make a final determination of the merits in this matter. However, my view based on the material before me is that Mrs Mendjinon does not have a strong case. I consider that this weighs against a finding of exceptional circumstances. Fairness as between the person and other persons in a similar position [29] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm5 considered this criterion and said ‘cases 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.’6 [30] I do not consider that there are other relevant persons in a similar position to Mrs Mendjinon. I therefore find this to be a neutral consideration. Conclusion [31] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances as to warrant my granting an exception to the statutory time limit for the lodgement of this application. -- 8 of 9 -- [2018] FWC 748 7 [32] If I am wrong as to the date of dismissal, and the application was one day out of time as contended by Mrs Mendjinon, I would come to the same conclusion, having considered the provisions of s394(3) of the Act, that being that there are no exceptional circumstances as to warrant an extension of time. [33] An order to that effect will issue with this decision. DEPUTY PRESIDENT Appearances: A Mendjinon on her own behalf. C Mills for the Respondent. Hearing details: 2018. Brisbane. February 6. Printed by authority of the Commonwealth Government Printer <PR600115> 1 Searle v Moly Mines Limited [2008] AIRCFB 1088 at para 2. 2 Section 386 of the Act. 3 [2011] FWAFB 975. 4 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]. 5 [2015] FWC 8885. 6 Ibid at [29]. -- 9 of 9 --