Applicant v Respondent
[2010] FWA 1062
•11 FEBRUARY 2010
[2010] FWA 1062 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Respondent
(U2009/13445)
DEPUTY PRESIDENT MCCARTHY | PERTH, 11 FEBRUARY 2010 |
Termination of employment – application lodged out of time – application dismissed.
Background
[1] The applicant is a fifteen year old girl still attending school. She had part time employment with the respondent for at least two years prior to her termination of employment in October 2009.
[2] An Application for an unfair dismissal remedy was lodged by the applicant on 3 November 2009. The application states that the applicant's employment was terminated on 13 October 2009. If the termination of employment did occur on 13 October 2009 the application would not have been lodged within the time allowed.
[3] The Fair Work Act 2009 ("the Act") requires that Fair Work Australia ("FWA") must initially decide whether the application was made within 14 days after the dismissal took effect or within such further period as FWA allows. 1
[4] The applicant asserted that despite the application stating the termination of employment took effect on 13 October 2009 that it actually took effect on 28 October 2009, being the date when a letter of termination was received from the respondent. The letter was dated 13 October 2009. If I find that the termination did in fact occur on 13 October 2009 the applicant requests that FWA allows the application notwithstanding that it would have been lodged beyond the time allowed.
Date of termination of employment
[5] The termination followed an exchange between the applicant and another on a "Facebook" site. The respondent became alert to the exchange and asserts that it involved comments about or regarding the respondent. The applicant does not dispute that there was comments made on a Facebook site by her but disputes that there was any reference to the respondent.
[6] The respondent says that the communication on the Facebook site was with a person the employees had been refused to have contact with, for reasons including that apparently there was some concern that the other person was or could set up an operation in competition with the respondent contrary to directions of the respondent.
[7] The respondent placed comments on the site including a statement that they rely on as being a termination of employment. The respondent acknowledges that the manner of termination may have been better handled, that it is a small, if not micro, business and that they are not experienced in matters concerning termination of employment. The applicant’s mother rang the respondent on the evening of 14 October 2009 and the respondent says that the termination of employment on 13 October 2009 was confirmed on that evening.
[8] The respondent says further that if the applicant realised that the termination took place at that time and with immediate effect and that is supported by the fact that the applicant did not attend for work on the Friday afternoon of the week.
[9] The respondent asserts that the termination letter was written on 13 October 2009 but not posted until some time afterwards.
[10] I agree with the respondent that the manner of termination was not ideal. However I also agree with the respondent that the termination took effect on 13 October 2009 and was confirmed by the respondent on 14 October 2009. Whilst neither the applicant nor the respondent gave sworn evidence I am confident in reaching that conclusion from the explanations provided by the respondent and the applicant’s mother, who represented the applicant. Indeed I found the applicant’s mother to be unconvincing in her account of what transpired in the telephone conversation of 14 October 2009.
Should the application be allowed?
[11] The applicant claims that immediate action was taken to contest the termination through the phone call on 14 October 2009 and through the seeking of advice. Further the applicant says that she should not be disadvantaged by the delay by the respondent in sending the termination letter, inferring that they should be able to rely on that delay as the date when they became aware of the termination. Given my findings above I consider that the applicant became aware of the termination on 13 October 2009.
[12] The applicant also asserts that the employer would not be prejudiced if the application were allowed and I accept that view.
[13] The applicant asserts or infers from the background material provided and explanations given, that the application has merit such that the application should be allowed. Whilst I do not make a finding that the application has no merit I consider the degree of merit it does have was diminished by the unconvincing nature of the explanations about the conduct of the applicant.
[14] I also consider that it would not be fair to others in a like position to the applicant to allow the application.
[15] I do not consider that there are exceptional circumstances such that the application should be allowed.
DEPUTY PRESIDENT
Hearing details:
2010.
Perth:
8 February.
1 s.396(a); s.394(2)
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