Alexandra Burns v Ngarda Civil and Mining Pty Ltd
[2012] FWA 3527
•30 APRIL 2012
[2012] FWA 3527 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alexandra Burns
v
Ngarda Civil and Mining Pty Ltd
(U2011/14075)
COMMISSIONER WILLIAMS | PERTH, 30 APRIL 2012 |
Termination of employment - extension of time.
[1] Ms Alexandra Burns (the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Ngarda Civil and Mining Pty Ltd (the Respondent). The Applicant’s dismissal took effect on 11 November 2011. This application was made on 30 November 2011.
[2] The Respondent objects to the fact that the application has been made more than 14 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.
[3] Section 394 (3) allows Fair Work Australia to allow a further period for an application such as this to be made only if Fair Work Australia is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in section 394 below.
“s. 394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[4] Submissions have been provided by the parties regarding allowing a further period for this application to be made.
Background
[5] The Applicant submits that the reason for the delay was representative error.
[6] The critical elements of the evidence provided by the Applicant and provided by her solicitor are that in the period leading up to her dismissal she was receiving legal advice and had always intended to proceed with a claim for unfair dismissal. She, with her solicitor, attended the Registry of the West Australian Industrial Relations Commission (WAIRC) on 30 November 2011 to file an application for unfair dismissal.
[7] When it became apparent that there may be a jurisdictional issue with this application she and her solicitor immediately went to the Registry of Fair Work Australia (in the same building) and lodged this application.
[8] The Applicant’s legal representative Mr McPhee says that he had been advising the Applicant during a long series of negotiations with the Respondent over many months leading up to her dismissal.
[9] Having received the notice of termination the Applicant instructed him to proceed to lodge an unfair dismissal claim. Mr McPhee says it was his belief at the time that the proper jurisdiction was the WAIRC. His evidence is that work of this nature is not a speciality of his. Mr McPhee’s evidence is that he proceeded on the understanding that there was a time limit of 28 days to lodge the application and advised the Applicant accordingly.
[10] He accompanied the Applicant to lodge the application at the WAIRC personally on 30 November 2011. This was within the 28 day time limit.
[11] Upon lodging the document he became aware for the first time that there might be a jurisdictional error and possibly that matter should be lodged with Fair Work Australia.
[12] He immediately went to Fair Work Australia in the same building and lodged this application the same day.
[13] On this background the Applicant argues that the reason for all of the delay was representative error.
[14] The Applicant submits that she did take action to dispute her dismissal by seeking legal advice the day before her dismissal took effect and her representative contacted the Respondent to advise them to correspond with her solicitor in future.
[15] The Applicant submits that there is no substantive prejudice to the employer in this case. In particular in this case the solicitors for the Respondent had been involved in interactions with the Applicant and her representatives since May of 2011 over the matters leading up to her dismissal and are fully aware of her position.
[16] The Applicant had been employed as a Site Nurse. The Applicant had been suspended for a lengthy period of time whilst the Respondent conducted an investigation into allegations regarding the misuse of drugs and failure to account for drugs under the care and control allegedly of the Applicant. The grounds of her unfair dismissal claim go to the conclusions the Respondent made about these matters and some procedural fairness concerns argued by the Applicant. The Applicant argues that clearly there is a prima facie case that her dismissal was unfair and the merits of the case support an extension of time being granted.
[17] The Respondent does not contest the factual basis for the Applicant’s extension of time application.
[18] Evidence provided for the Respondent confirms that the Respondent in May 2011 suspended the Applicant pending the outcome of an investigation into irregularities identified in the records at the Yarrie Mine Clinic.
[19] From early June 2011 there were many communications between the Respondent and Mr McPhee, the Applicant’s lawyer.
[20] The first time the Applicant’s lawyer referred to allegations of unfair treatment of the Applicant was in correspondence dated 30 June 2011 and the likelihood of instituting an unfair dismissal claim was a common theme in future correspondence to the Respondent.
[21] The Applicant was notified by letter dated 8 November 2011 that the Respondent intended to dismiss her effective 11 November 2011.
[22] The Respondent says the first time they were aware that the Applicant was challenging her dismissal was having received copies of unfair dismissal application served upon them on 30 November 2011 by Mr McPhee.
[23] The Respondent argues that in this case where the Applicant’s lawyer had been acting for her for almost 6 months before this application the reliance on so-called representative error should be diminished in importance compared to the other statutory considerations when considering whether or not to allow an extension of time.
[24] The Respondent submits in this case there was ample time for a senior lawyer such as Mr McPhee to ascertain the jurisdictional framework in which to correctly deal with the issues of the Applicant’s claim. This is particularly so given the correspondence from Mr McPhee from June 2011 onwards commonly referred to complaints of alleged breaches of contracts of employment, repudiation of employment contracts, and allegedly entirely unfair actions of the Respondent.
[25] The Respondent argues that the course of this correspondence demonstrates Mr McPhee had many months prior to the termination of the Applicant to consider her rights should she ultimately be dismissed.
[26] The Respondent argues that there was little reaction by the Applicant to the dismissal of 11 November 2011.
[27] The Respondent points out that the mere absence of any prejudice to the Respondent is not sufficient to justify the grant an extension of time.
[28] With respect to the merits the Respondent submits that the employment was terminated only after completing a lengthy investigation during which time the Applicant was legally represented.
[29] The Respondent argues that the merit of the matter is not to be determined in this application regarding an extension of time and this factor does not assist the Applicant.
Consideration - Were there exceptional circumstances?
The reason for the delay
[30] There is little dispute here as to the reason for the delay in lodging this application. The delay was because of an error made by the Applicant’s legal representatives as to the correct jurisdiction in which to lodge the application. This error meant that the application was lodged out of time.
[31] I accept that the reason for all of the delay in making this application was representative error.
Any action taken to dispute the dismissal
[32] There is no evidence that the Applicant took any other action to dispute her dismissal other than lodging this application and the similar application with the WAIRC after she was dismissed.
[33] However it is notable that the prior to her dismissal the Applicant had foreshadowed that she was likely to challenge any decision by the Respondent to dismiss her.
Prejudice to the employer (including prejudice caused by the delay)
[34] There is no suggestion that there is any particular prejudice to the Respondent if a further period to apply was allowed.
The merits of the application
[35] The Tribunal is not required to embark on a detailed analysis of the merits of the substantive case when determining the question of whether or not an extension of time to apply should be allowed.
[36] In this case there is a significant history of events leading up to the Respondent’s ultimate decision to dismiss which followed a lengthy period of suspension of the Applicant and a detailed investigation.
[37] At this stage it cannot be said that the Applicant’s case is hopeless or without any merit however it is by no means clear that she will succeed either.
[38] The question of the merit of substantive application is a neutral consideration in determining the extension of time application.
Fairness as between the person and other persons in a similar position
[39] This factor is not relevant in this case.
Conclusion
[40] The onus is on the Applicant to persuade Fair Work Australia that a further period should be allowed for her to make this application beyond the statutory time limit of 14 days.
[41] I have considered the information provided and the submissions by both parties on the relevant factors and I am satisfied that there is a reasonable explanation for all of the delay in this case which was caused by representative error. On the evidence it is plain that if the Applicant’s representative, Mr McPhee, was properly aware of the correct jurisdiction within which to file the application this application would in all probability have been made within the 14 day time-limit.
[42] None of the other factors to be considered weigh either for or against the extension of time application.
[43] Consequently I am persuaded in this case that what occurred was an exceptional circumstance and that I should exercise the discretion available to allow a further period for this application to be made.
[44] An order to that effect will issue in conjunction with this decision.
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