A Robertson v Peninsula Health T/As Frankston Hospital
[2015] FWC 3973
•17 JUNE 2015
| [2015] FWC 3973 [Note: An appeal pursuant to s.604 (C2015/4632) was lodged against this decision - refer to Full Bench decision dated 15 September 2015 [[2015] FWCFB 5283] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
A Robertson
v
Peninsula Health T/As Frankston Hospital
(U2015/1696)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 17 JUNE 2015 |
Application for relief from unfair dismissal – extension of time – jurisdictional objection upheld – no exceptional circumstances – application dismissed.
[1] This is an application by Mrs A Robertson (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged termination of her employment by Peninsula Health T/As Frankston Hospital (the Respondent).
[2] The application was made on 14 April 2015. The termination had effect on 23 March 2015. Therefore the application was made one day beyond the time period prescribed in s.394(2)(a) of the Act and if it is to be accepted requires an extension of the time for lodgement until 14 April 2015, pursuant to s.394(2)(b) by the Fair Work Commission. That requires satisfaction that there are exceptional circumstances (s.394(3)), 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.”
The reason for the delay
[3] In February 2015 the Applicant and her husband had pre booked and fully paid for a short trip to celebrate their 50th wedding anniversary, departing Australia on 2 April 2015 and returning on the morning of 13 April 2015, the day on which her application was required in order to comply with the 21 day period in s.394(2)(a) of the Act. The Applicant argued that she is 70 years old and does not know how to type, use a computer or the internet and was unable to access information in regards to lodging an unfair dismissal remedy while she was overseas in an unfamiliar environment and away from her support network and was therefore unable to lodge an application while she was away.
[4] I am not satisfied that there was a satisfactory explanation for the failure to lodge the application in time nor that the explanation establishes exceptional circumstances for the late lodgement. Whilst I accept that the pre-arranged absence overseas of the applicant for part of the 21 day period explains the failure of the Applicant to lodge an application during that period of absence overseas, there is no adequate explanation for the failure by the Applicant to file an application in the nine day period preceding her absence overseas or take steps to arrange for the filing of her application by her children, in circumstances in which the Applicant was aware of her pending absence from Australia between 2 and 13 April 2015 and in which her children filed the application on her behalf and attended to subsequent communication regarding the application. I accept that the Applicant is unfamiliar with computers and the internet and was reliant on the assistance of her family to institute proceedings. However, there is no explanation of her failure to activate that family support and assistance until shortly before her departure overseas or to authorise her family to act on her behalf during her absence overseas.
[5] The Applicant had an opportunity prior to her departure overseas to verify and act on her legal rights with the support of her children but did not do so, even though she knew she was not returning to Australia until the morning on which a s.394 application would be required to be made to comply with the 21 day time period prescribed in s.394(2)(a) of the Act.
[6] The reasons relied on do not support a finding of exceptional circumstances.
Whether the Applicant first became aware of the dismissal after it had taken effect
[7] The Applicantbecame aware of the termination on 23 March 2015, the day it took effect, at which time she signed a resignation letter. This consideration lends no support to a finding of exceptional circumstances.
Any action taken by the Applicant to dispute the dismissal
[8] The Applicanttook no action other than to lodge her s.394 application to dispute the dismissal, other than to seek supporting documentation from the Respondent employer, through her son, on 8 April 2015. Whilst, the actions of the Applicant’s son would have alerted the Respondent of the possibility of a legal challenge to the termination, this consideration does not establish exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[9] In the context of the one day delay in lodgement, and in the absence of any evidence to support prejudice to the Respondent, I find that there would be no prejudice to the Respondent from the acceptance of the late application. This is a neutral consideration in the circumstances of the current matter.
The merits of the application
[10] There is a factual dispute as to whether the Applicant’s resignation was a voluntary or a constructive dismissal and substantive and procedural issues around the termination, including the proportionality of termination, as to the consequence of the actions which led to the cessation of her employment.This conflict could only be resolved on the basis of a full case as to the merits. Without hearing that evidence, I cannot find that the substantive case of the Applicant is devoid of merit. This is a neutral consideration in the circumstances of the current matter.
Fairness as between the Applicant and other persons in a similar position.
[11] In my view, no issue about fairness in relation to other persons arises in this case. This is a neutral consideration in the circumstances of the current matter.
Conclusion
[12] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. On that basis, the application is out of time and it is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
K Darma for A Robertson with S Robertson and J Robertson.
K Pimm with L Winterburn for the Respondent.
Hearing details:
2015.
Melbourne:
June 15.
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