Allanah Baker v Salva Resources Pty Ltd

[2011] FWA 1289

Note: An appeal pursuant to s.604 (C2011/111) was lodged against this decision - refer to Full Bench decisions dated 6 May 2011 [[2011] FWAFB 2625] and 27 June 2011 [[2011] FWAFB 4014] for result of appeal.

[2011] FWA 1289

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Allanah Baker
v
Salva Resources Pty Ltd
(C2010/5919)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 28 FEBRUARY 2011

Alleged contravention of general protections provisions; whether to grant extension of time for application.

[1] Ms Allanah Baker (the applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) for FWA to deal with a general protections dispute on 17 December 2010. She had been dismissed by her former employer, Salva Resources Pty Ltd (the respondent) on 15 January 2010.

[2] S.366 of the Act provides:

‘(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.’

[3] It will be noted that the applicant’s application was made around 11 months after her dismissal. The issue therefore arises whether the applicant should be allowed an extension of time under s.366 (2). Directions were issued on 7 January 2011, and written submissions received from the applicant and the respondent.

[4] The applicant was taken ill at work on 13 January 2010 and was subsequently an inpatient at the Royal Brisbane Hospital from 15 January 2010 until 9 April 2010. According to the applicant, upon her discharge from hospital she relied on the support of two close friends for temporary accommodation. She said that she was still experiencing side effects to prescribed medication and had to rehabilitate herself to a non-institutionalised daily routine. She was focussed on securing more stable accommodation on a sickness benefit income. She had commitments to attend regular medical appointments and had to attend interviews with Centrelink.

[5] On 28 January 2010 the applicant lodged an application with WorkCover Queensland for compensation for a psychological injury. This claim was rejected on 25 March 2010. The applicant then lodged an application for review of this decision on 27 July 2010. She attended a hearing on 5 October 2010 where she provided written and oral submissions in support of her application for review. On 27 October 2010 the review confirmed the original decision. In response, the applicant on 15 November 2010 lodged a Notice of Appeal with the Queensland Industrial Relations Commission.

[6] Ms Baker’s submission attached a letter from her consultant psychiatrist, Dr G Leong, dated 11 January 2011. In this letter Dr Leong says:

‘While ill and hospitalised, her illness impaired her ability to attend to matters related to her employment. Furthermore, upon her discharge, attendance to other statutory matters, may have further delayed her attention.’

[7] There is little before the tribunal concerning the merits of the application, though I am prepared to assume that the application is not without merit. It is not clear that any particular prejudice would attach to the employer from having to deal with the application. While the applicant has sought compensation for an alleged workplace injury, there is no evidence of any other action she has taken to dispute the dismissal prior to her lodging her general protections claim. There is also no material relating to fairness as between the applicant and other persons in a like position.

[8] It is hard not to be sympathetic to Ms Baker’s illness. However I am not persuaded that her ill health and her associated difficulties with accommodation have been such as to provide a compelling reason for the lengthy delay in the lodgement of her application. Of particular note is that she was able, despite these circumstances, to lodge an application for workers compensation, and has been able to lodge two further appeals against decisions that were adverse to her, all before the lodgement of her application to this tribunal.

[9] The respondent submitted that:

‘if Ms Baker was able to lodge her application with WorkCover Queensland so quickly after termination and to meet the statutory requirements from WorkCover Queensland, she should have been able to meet the requirement of section 365 of the Fair Work Act 2009 to lodge her application to deal with contraventions involving dismissal within 60 days.’

[10] I find this reasoning persuasive. Nor can I accept that the time it took the applicant to deal with her workers compensation claim provided an acceptable basis for saying that she was unable to lodge her claim under the Fair Work Act. Having had regard to all the factors referred to in s.366(2) of the Act, I conclude that there are no exceptional circumstances that would justify granting an extension of time for Ms Baker’s application. Her application is accordingly dismissed.

SENIOR DEPUTY PRESIDENT

Final written submissions:

14 February 2011

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