Alexandra Stephens v SP International Group Pty Ltd T/A Gull Roadhouse

[2014] FWC 2541

[2014] FWC 2541

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexandra Stephens
v
SP International Group Pty Ltd T/A Gull Roadhouse
(U2014/5128)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 15 APRIL 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 15 April 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision. On 28 February 2014 Ms Stephens lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief in relation to the termination of her employment with Puma Energy.

[2] In that application, Ms Stephens advised that her dismissal took effect on 30 January 2014. She advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept her application out of time.

“After the dismissal, my partner started a job in which he is required to work away from myself and our daughter. He was away for ten days and I was adjusting to being by myself at home and taking on the extra duties which my partner would normally help me with.” 1

[3] The application was referred to me for consideration. On 28 March 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 15 April 2014. Ms Stephens was required to provide a witness statement and a copy of any document relied upon, by 8 April 2014.

[4] An Employer’s Response (Form F3) to the application was received on 1 April 2014. That response identified the employer as SP International Group Pty Ltd T/A Gull Roadhouse. It asserted that Ms Stephens was a casual employee who was notified of her dismissal on 22 January 2014, which then took effect on 28 January 2014.

[5] On 8 April 2014 Ms Stephens provided a statement in the following terms:

“My reason for claiming unfair dismissal a couple of days outside the time frame i was given, was due to the fact that my partner started a new job where he would be working 3 hours away from my daughter and I. He is gone for 8 days at a time normally, but as he had to complete two days training in Roxby Downs for compulsory tickets he needed, he had to stay for two extra days, bring the total to ten days in Roxby Downs. I was ‘dismissed’ on Thursday the 30th of January, my partner was due to start work the following Monday (3rd Feb). Since our daughter was born ive always had a great amount of help from my partner as he worked from 7am-4pm Monday to Friday, and getting used to looking after my 16 month old daughter by myself while searching for a new job was quite stressful, as i cannot afford to be unemployed (I am not eligible for any sort of Centrelink payments). My parents both work full time (my father works away) as does not partners mother. My partners father is in his 70’s and not fit to be looking after a 16 month old. It is my job as a parent to stand on my own two feet and get myself another job, it would not have been fair of me to ask my parents or my partners parents to take time off. I have attached by partners Offer of Employment letter, as its the only physical proof I have of this situation. (sic)

Alex Stephens”

[6] The extension of time issue was considered through a telephone conference on 15 April 2014. A sound file record of this conference was kept. Ms Stephens represented herself at this conference and the respondent was represented by Mr Sammidi. I note that the respondent opposed any extension of time.

[7] At the conference I advised the parties that I would amend the application pursuant to s.586 of the FW Act so as to specify the respondent as SA International Group Pty Ltd T/A Gull Roadhouse.

[8] Both parties acknowledged that the information provided to them included a copy of s.394 and were advised of the factors I am required to take into account in considering this matter.

[9] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC 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 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:

(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.”

[10] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. Depending on the actual day the termination of Ms Stephens took effect, the application was other lodged seven or nine days late. I have concluded that, notwithstanding that Ms Stephens’ last day of work was 28 January 2013, the actual date the dismissal took effect was 30 January 2014 which was the date upon which that termination of employment was confirmed to her. Hence the application was lodged seven days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Ms Stephens’ circumstances can be regarded as exceptional for the purposes of this subsection.

[11] The information Ms Stephens has provided may explain her inaction for part of the period in question, but does not explain why the application could not have been lodged within time. Ms Stephens conceded that she was aware of the capacity to make an application within a week of the termination of her employment. She acknowledged that her partner was away for only some of the time after the termination of her employment such that she was busy with childcare duties but also advised that "time got away from me". She also advised that she went away for a wedding over this time. I am not satisfied that Ms Stephens has established to me a satisfactory reason for the delay.

[12] I am satisfied that Ms Stephens was made aware of the termination of employment decision on, or before 30 January 2014 which I have taken as the date that termination of employment took effect.

[13] Other than the belated lodgement of this application, I am not satisfied that Ms Stephens took action to contest the termination of her employment.

[14] The granting of an extension of time would prejudice the respondent in this matter.

[15] On the limited information before me I am not able to make an assessment of the merits of the application. Hence, in terms of the extension of time issue, I regard this as a neutral factor.

[16] Considerations of fairness relative to persons in similar circumstances to Ms Stephens do not support an extension of time.

Conclusion

[17] For the reasons I have set out above, Ms Stephens’ circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR549731) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

A Stephens on her own behalf.

S Sammidi representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

April 15.

 1   Form F2, para 1.4

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