Anna Maree George v Campbell Page Limited T/A Campbell Page
[2012] FWA 8879
•22 OCTOBER 2012
[2012] FWA 8879 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Anna Maree George
v
Campbell Page Limited T/A Campbell Page
(C2012/5464)
COMMISSIONER DEEGAN | CANBERRA, 22 OCTOBER 2012 |
Extension of time application, amendment to an application.
[1] Ms Anna George (the applicant) lodged an application pursuant to s.773 of the Fair Work Act 2009 (the Act) on 26 September 2012, alleging that her employment with Campbell Page Limited (the respondent) had been terminated, that she had suffered bullying and harassment whilst still employed and that she was not offered an interview for the full time position that replaced the contractual position that she had been working in previously.
[2] The respondent’s representative filed a response to the application, which stated that the respondent is a national system employer and not covered by s.772 of the Act. It was also stated that the applicant had filed her application outside the 60 day time limit prescribed by s.774(1)(a) of the Act.
[3] The matter was listed for hearing on 16 October 2012. At the hearing the applicant sought to amend her application from a s.773 application to a s.365 application. The respondent’s representative did not object to this and noted that it was an appropriate course 1. As a consequence, pursuant to s.586 of the Act, I will amend the application to provide that it is made under s.365 of the Act.
[4] Despite noting that the application had been filed outside the 60 day time limit the respondent did not oppose additional time being allowed for the filing of the application 2.
[5] The relevant part of the legislation provides:
366 Time for application
(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.
[6] The applicant had been employed on a contract with an end date of 31 July 2012. Her last day at work was 19 July but she was paid until the end of the contract. If the date of termination is taken to have been 19 July the application was lodged 9 days after the time for lodgement had expired. If the employment was terminated on 31 July, at the end of the contract, the application was lodged within time.
[7] According to her application the applicant had wanted to continue to work until the end of her contract. The employer’s written response however, suggested that the applicant had refused to an offer to work out her contract at a different office.
[8] Based on the uncontested facts put for the applicant, I am satisfied that the applicant took action to dispute her dismissal directly with the employer, that there will be no prejudice to the employer if the application is accepted and that the application is not totally without merit. I do not believe the criterion at s.366(2)(e) has any relevance to this matter.
[9] Given that the employer’s legal representative does not oppose the additional time being allowed for the lodgement of the application and the doubt that exists as to the date on which the termination of employment took effect, I am satisfied that exceptional circumstances exist such that I should allow additional time for lodgement of the application. Pursuant to s774(2)(b) I extend the time for lodgement until 26 September 2012.
COMMISSIONER
Appearances:
Ms E Skalidis, of M+K Dobson Mitchell Allport, for the applicant
Ms R Mason, of Herbert Smith Freehills, for the respondent
Hearing details:
2012.
Hobart:
October 16.
1 Transcript at PN16
2 Transcript at PN20
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