WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2015 WAIRC 00911

DELIVERED : WEDNEsday, 30 September 2015

FILE NO. : U 60 OF 2015

Applicant

AND

Wirnda Barna Artists Inc.

Respondent

CatchWords : Termination of employment - Claim of harsh, oppressive and unfair dismissal - Acceptance of referral out of time - Application referred outside of 28 day time limit - Conduct outside working hours - Relevant principles to be applied - Commission satisfied applying principles that discretion should not be exercised - Application dismissed

Legislation : Industrial Relations Act 1979 s 29(3)

Result : Claim of unfair dismissal made out of time dismissed

Representation:

Applicant : Ms A T Garlett

Respondent : Mr B Penzer

Case(s) referred to in reasons:

Rose v Telstra Corporation Ltd Print Q9292 (4 December 1998)

Reasons for Decision – Claim of unfair dismissal lodged out of time

Correct name of the respondent

1         It became apparent from the evidence given by Mr Penzer, who has been named personally by Ms Garlett as the respondent to her claim, that Ms Garlett had been employed by the Wirnda Barna Artists Inc.  Mr Penzer had been her manager and was himself an employee of that body.  Mr Penzer himself was not Ms Garlett’s employer even if it was he who offered her the job.

2         It is important that the respondent to Ms Garlett’s claim of unfair dismissal is her former employer.  For that reason, I will order that the name of the respondent be changed to correctly name her former employer by deleting ‘Brendan Penzer – Wirnda Barna Art Gallery’.  This will leave ‘Wirnda Barna Artists Inc’ as the correct respondent to her claim.

Claim out of time

The length of the delay

3         Ms Garlett referred her claim of unfair dismissal to the Commission on 15 April 2015.  Her evidence is that she was dismissed on 15 December 2014 when she spoke to Mr Penzer, the manager of the Wirnda Barna Art Gallery, in Mt Magnet.  If her evidence is accepted, then she took 4 months to make her claim. 

4         The Industrial Relations Act requires her to make her claim within 28 days of the day her employment terminated so her claim is three months out of time.

5         Mr Penzer’s evidence is that he dismissed Ms Garlett on 25 November 2014 in a phone call, and that she accepted this.  If his evidence is accepted then she took 4 months and 3 weeks to make her claim.

6         In either case, the delay is 3 times longer than the time the Parliament has allowed for bringing such a claim.  That is a long delay.

The reason for the delay

7         Ms Garlett says she was unaware of the time limit of 28 days to file a claim of unfair dismissal and I accept that she did not know it.  She says that she was unaware of the Commission and what she would have to do to challenge her dismissal.  She says that no-one that she spoke to told her about making a claim in the Commission. 

8         Her evidence is that she had an arrangement with Mr Penzer to meet her at Perth airport when she returned from a workshop in Alice Springs on 28 November 2014.  Mr Penzer did not meet her.  When she rang him, he did not answer his phone and she was very, very stressed and a witness she will call will give evidence to this effect.  It meant that now she had no-where to live in Mt Magnet.  She is responsible for her 2 grandchildren and has to look after them.  She stayed in Perth until 14 December 2014 and made her own way back to Mt Magnet with her grandchildren.  The next day she went to the Art Gallery.  She asked Mr Penzer if she still had a job and he shook his head and ushered her out of the door without an explanation.  That is the first time she knew she did not have a job.

9         At that time it was approaching Christmas and she had to make arrangements for her grandchildren for Christmas.  At that time too everything is closed and she was living in someone else’s house.  It was not until 15 January 2015 that she rang Ms Scoggins of Aboriginal Art Centre Hub WA to ask who was Mr Penzer’s boss.  She waited for 2 weeks for Ms Scoggins to get back to her however she did not do so.  She then went to the Aboriginal Legal Service in Geraldton who referred her to the Geraldton Resource Centre for an appointment on 20 January 2015.  A letter tendered by Ms Garlett shows that during February 2015 Ms Garlett contacted the Arts Law Centre of Australia seeking legal advice in relation to an unfair dismissal claim against Wirnda Barna Artists and they referred the query to the Geraldton Resource Centre. 

10      On 23 February 2015 she wrote to each of the respondent’s Board members describing the circumstances and saying she intended to take Mr Penzer to court over harsh and unfair dismissal.  She did not receive any reply.  She made contact with the Equal Opportunity Commission and the WA Law Society.  Ms Garlett contacted Wageline which told her of this Commission and she contacted the Commission on 18 March 2015.  However even with this information, Ms Garlett took almost another month from then to make her claim.  She says she was told she needed to know whether the Art Gallery was federally funded or state funded and she waited for an answer.

11      I make the following comments.  Mr Penzer’s evidence is that he told Ms Garlett in a telephone call with her on 25 November 2014 that her employment had ended.  There is enough other evidence to suggest, at this preliminary stage, that Mr Penzer’s evidence on this point is likely to be accepted if Ms Garlett’s claim is accepted out of time. 

12      First, the evidence of Ms Garlett’s SMS message to Mr Penzer on that day says: ‘I just want to stay in Perth with my family.  Thanks for everything’, and Mr Penzer’s reply is ‘yeah thanks see ya’, which is evidence to suggest that Ms Garlett realised at that time that she no longer had a job. 

13      Second, Ms Garlett’s answer to question 20 in her application is that on that day she had asked Mr Penny to ring Mr Penzer, he had done so and asked Mr Penzer if she still had a job and Mr Penny had said to her that Mr Penzer told him she did not have a job. 

14      Third, although she returned from Alice Springs on 28 November 2014 expecting Mr Penzer to meet her at the airport, she did not return to Mt Magnet until 14 December 2014 because she knew she did not have anywhere to live in Mt Magnet.  This is because Ms Garlett had been living in the manager’s house in Mt Magnet.  Mr Penzer was the manager and therefore she had been living with, or in the same house as, Mr Penzer.  As I understand it, she had been living there at the time Mr Penzer had offered her the job.  If she knew when she returned from Alice Springs she no longer had any accommodation there then it suggests that something had happened in relation to her job.   

15      Fourth, on 2 December 2014 at Mr Penzer’s request she posted back to him the Art Gallery’s camera which she had taken with her to Alice Springs.  She had offered to bring it with her when she returned but Mr Penzer wanted it posted.  This is more consistent with Ms Garlett no longer having a job when she returned from Alice Springs than it is with her not being dismissed until 15 December 2014. 

16      If Ms Garlett was in fact told on 25 November 2014 that she would no longer have a job when she returned from Alice Springs then she took even longer to commence the process of finding out about a claim of unfair dismissal. 

17      Even if, as she says, it was not until 15 December 2014 that she knew that she did not have a job, the first thing she did about it was make a telephone call in early January 2015.  Taking into account that Christmas was not far away and Ms Garlett had to make arrangements for it and her grandchildren in difficult circumstances, and her evidence that it was a very stressful time, I do not accept that she could not have made that phone call before early January.  Many workplaces do close over the Christmas period but they are open until just before 24 December and the fact that they close over Christmas is as much a reason to make the call before then as it is to do nothing and wait for everything to open afterwards. 

18      It is also significant that even when Ms Garlett was informed about this Commission, there is no satisfactory explanation why she did not make her claim for another month, other than she was waiting for information regarding the source of funding.  That is a long time just to wait.

19      Overall, I am not persuaded that there is an acceptable explanation for the delay of 3 months. 

The merits of the claim of unfair dismissal

20      Ms Garlett commenced at the Art Gallery in September 2014 as an art worker.  She had been employed for 2½ months.  In her claim, she says she was ‘casual’.  She also stated she was casual in the tax file number declaration (exhibit A).  I am not sure much turns on this description.  The time sheets show a continuing pattern of employment over the weeks even if they do not show a regular daily pattern of hours.  Ms Garlett worked at least between 3-5 hours per day, and some days towards the end of her employment show her working close to full time hours. 

21      What is of greater significance is Mr Penzer’s evidence that Ms Garlett was employed on a trial or probation period of 3 months to train her and ‘see how it goes’.  Ms Garlett denies this and says a trial was never mentioned.  On this issue, I note that in her own evidence Ms Garlett doesn’t say her job was ongoing but that it was casual and may be for 3 months or 6 months.  If this went to a full hearing it is at least open to conclude that Ms Garlett was employed on a trial basis.

22      Ms Garlett says everything was going well.  She went to Alice Springs in November 2014 for a week to do an art worker course.  She asks why would she have been sent there if everything was not going well? 

23      She says Mr Penzer was supposed to pick her up from Perth Airport on her return.  He didn’t and he did not answer his phone, leaving her stranded not knowing what was going on.  She asked someone else to ring Mr Penzer and that person said that Mr Penzer told him she did not have a job.  When she finally returned to Mt Magnet Mr Penzer gave her no explanation whatsoever. 

24      I make the following comments.  If an employee is dismissed in such circumstances then there is at least an argument that the dismissal is harsh.  However, Mr Penzer’s evidence of what he will say if there is a full hearing into the dismissal shows there is more to the situation.  Mr Penzer’s evidence is that he told Ms Garlett’s she would have no more employment at about the end of the trial period because she did not perform certain tasks and frequently she took extended breaks.  At times after a long break she would return intoxicated.  She would leave work early and on only half of these occasions would she ring him beforehand about doing so; he would allow her to leave early when the request was for family reasons. 

25      Mr Penzer’s evidence is that in October Ms Garlett brought alcohol into work.  At lunchtime she was intoxicated when she returned to the Art Gallery and found the doors had been locked.  Ms Garlett then went to the manager’s house where Mr Penzer was in bed sick.  He did not answer the door and she smashed the front window of the door with a beer bottle.  His evidence is that he was going to dismiss her but she apologised profusely and he gave her a ‘last chance’. 

26      His evidence is that in late October at a Regional Arts Summit in Kalgoorlie there were 2 occasions when Ms Garlett became agitated and acted in a violent manner towards him in the presence of others.  One was at the conference centre and he had to revert to ‘harm minimisation’ and curtail conversation with colleagues so as not to have an incident in public.  The other was at the evening event and he had to cancel their attendance at the event and return to the motel. 

27      Towards the end of her employment, she would call and text him day after day, even 16 times in a day, and speak to him, or text him, in a violent and intimidating manner which he described as harassment and stalking.  On 25 November 2014 he told Ms Garlett that her behaviour was inappropriate, violent and threatening, and that after her return from Alice Springs there would be no more work for her. 

28      On the evening of 15 December 2014, the date she had gone to the Art Gallery, Ms Garlett went to the manager’s house and smashed all the windows, for which she was charged with unlawful damage.  Her bail conditions, which continued to 24 May 2015, included not to contact Mr Penzer.  Subsequently he has obtained a Violence Restraining Order against her and there are ongoing criminal proceedings against her.

29      I note that Ms Garlett does not accept Mr Penzer’s evidence.  She says she did not leave work early without first ringing Mr Penzer to obtain permission.  She has never brought alcohol to work and if her claim of unfair dismissal goes to a full hearing, her two grandchildren will give evidence to that effect.  The broken front window was nothing to do with work, it was personal issues, and it was an accident – that was why Mr Penzer had not reported it to the police.  There was only one incident in Kalgoorlie, not two, she was not violent or agitated and it was after hours at 7.00 pm and it related to a non-work issue between her and Mr Penzer. 

30      Her evidence is that she did not ‘stalk’ Mr Penzer but kept trying to contact him only because he would not answer his phone.  She admits that some of her texts were violent and intimidating but it was to do with personal issues, not their working relationship.  The smashed windows in the manager’s house on 15 December 2014 happened after hours, and because her grandchildren’s pet dog had died when she was in Alice Springs. Mr Penzer had buried the dog in the backyard but when she brought her grandchildren around to show them to give them closure, Mr Penzer wouldn’t let them in the garden and other family members got angry. 

31      It is open to find that the evidence which Mr Penzer would give if her claim went to a full hearing alleges serious misconduct by Ms Garlett.  He says his evidence about Ms Garlett’s alleged conduct in Kalgoorlie and at work would be supported by witnesses he will call. 

32      Ms Garlett says that much of what Mr Penzer refers to occurred outside working hours.  However I am not sure that is so at least in relation to the allegation that frequently she took extended breaks, on one occasion returning to work intoxicated, leaving work early, and, possibly, the breaking of the front window of the manager’s house, all of which seem to be within working hours. 

33      But even if these things had occurred outside working hours, and even if the Kalgoorlie incident, or incidents, and her violent and intimidating texts all occurred outside working hours, that doesn’t mean, as she suggests, they are not relevant to her claim she was unfairly dismissed. 

34      Generally, it is only in exceptional circumstances that an employer has a right to take into account what an employee does in their private life.  However there can be conduct which would cause an employer legitimate concern even though it occurred outside working hours.  Some examples are:

• conduct that, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee; or
• conduct which damages the employer’s interests; or
• conduct which is incompatible with the employee’s duty as an employee.

  (Rose v Telstra Corporation Ltd Print Q9292, 4 December 1998)

35      While the full circumstances are not known here, breaking the front window of the employer’s property, behaving badly towards her manager at a conference or evening function which she is attending as an employee, and sending violent and intimidating texts to her manager are all matters of direct concern to the employer.    Viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee and is incompatible with her duty as an employee.

36      While the full circumstances of Mr Penzer’s relationship with Ms Garlett is not clear from the evidence, it is clear that Mr Penzer was her manager and she was an employee under his authority.  That remains the case after hours.  There may have been more to their relationship than that of manager and employee, at least because Ms Garlett was living in the manager’s house where Mr Penzer also lived, when Mr Penzer offered her the job.  She continued to live there until she went to Alice Springs.  That does not mean Ms Garlett’s conduct outside working hours, if it was as Mr Penzer described, does not provide grounds to support the decision to dismiss her.

37      Further, although Ms Garlett did not recall saying in a text to Mr Penzer on 25 November 2014 that she wanted to stay in Perth, and denied thanking him for everything, the copies of the text (exhibit A) show that she did.  This considerably weakens her case that she was dismissed on 15 December 2014, and even suggests that at the time she accepted the ending of her employment.

38      For all of those reasons, in my view, Ms Garlett does not have a strong case that her dismissal was harsh.  Even if she was dismissed in the manner she describes, the manner of her dismissal is only one factor to be taken into account and is somewhat overshadowed by what the balance of the evidence is likely to be. 

Prejudice to the respondent

39      Mr Penzer’s evidence is that he is in the habit of making notes about incidents which occurred. He did so about the incidents he has stated in his evidence.  It is also his habit periodically to go through them, rip them out and throw them away.  This he has done with his notes about Ms Garlett’s behaviour and therefore he will be at a disadvantage if her claim of unfair dismissal is accepted and he has to give evidence.

40      Ms Garlett did not challenge this evidence.  She asked him to state when he says she brought alcohol into work and his reply was that he does not remember because he no longer has his notes.  I have no reason not to accept Mr Penzer’s evidence on this point and I do so.  I find that there will be a prejudice to the employer if Ms Garlett’s claim is accepted which arises directly from the delay which has occurred.  It goes against accepting her claim out of time.

  Action taken by Ms Garlett to contest her dismissal other than making this claim

41      Ms Garlett did write to all of the Board members on 23 February 2015 placing them on notice that she believed she had been unfairly dismissed.  It can be said therefore that the employer knew from that date at least that a claim was possible even if, as Mr Penzer says, none of the Board members told him and he himself did not know until months after it was written. 

42      The fact that Ms Garlett wrote to the Board members means the employer did know of her intention 7 weeks before she filed her claim, but by the time she had written, more than two months had passed after 15 December 2014.  The fact that Ms Garlett wrote to the Board does not, in this case, favour the granting of an extension of time.

Conclusion

43      The Act in s 29(3) allows the Commission to accept a claim of unfair dismissal out of time if it would be unfair not to do so.  The time limit of 28 days to lodge the claim should be complied with unless there is an acceptable explanation for the delay which makes it fair to accept it.  The Commission must be positively satisfied that the prescribed period should be extended.

44      I am not positively satisfied that it would be unfair not to accept the claim.  The delay of 3 months is a long delay.  Even taking into account she is resident in a remote location, and may not have ready access to appropriate advice, Ms Garlett did not act promptly: she did not even start her investigation by making the first phone call about it until 3 weeks afterwards.  Even if Ms Garlett was dismissed in the manner she describes, her claim that her dismissal was unfair is not strong and there will be a prejudice to the employer if the claim is accepted.  In all of the circumstances, I will dismiss her claim of unfair dismissal.