Carolyn Lee v Baptistcare
[2022] FWC 45
•13 JANUARY 2022
| [2022] FWC 45 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Carolyn Lee
v
Baptistcare
(U2021/10919)
| COMMISSIONER WILLIAMS | PERTH, 13 JANUARY 2022 |
Termination of employment - jurisdiction - extension of time.
Mrs Carolyn Lee (Mrs Lee or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Baptiscare (the Respondent).
The Respondent’s response objects to the application on the grounds that the application has been made out of time, that the Applicant was not dismissed and finally that the Applicant’s employment does not meet the minimum employment period.
Mrs Lee states in her application she began working for the Respondent on 14 June 2021 and was notified of her dismissal on 7 September 2021 and apparently the dismissal took effect the same date. She advised the Commission’s staff on the telephone that this was the case. The Applicant then filed an amended application which states she was notified of her dismissal on the 15 September 2021 and the dismissal took effect on 22 September 2021. Her application was made on 29 November 2021.
Considering either of the dates on which the alleged dismissal took effect the application has been made more than 21 days after the Applicant’s alleged dismissal took effect.
Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.
“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.”
Consequently, on 15 December 2021 the Commission’s staff emailed the Applicant explaining to her the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.
A file note from the Commission’s staff confirms the Applicant declined to provide any further submissions regarding her application having been made out of time.
This decision considers only whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The Applicant’s reason for the delay
In her application Mrs Lee recognises her application has been made more than 21 days after the dismissal took effect. Mrs Lee says that that she emailed the Commission four days after her last shift as she did not know how to do the process. She says she got an email last week with a link to this information.
It is unfortunately the case that many employees who have been dismissed are unaware of the process to lodge an application alleging unfair dismissal. This is not an exceptional circumstance.
Further waiting to be informed by the staff of the Commission’s registry as to how to proceed is not an acceptable reason for the delay.
The Applicant has not provided an acceptable reason for the delay in making her application. Nor are the circumstances of her case that she has submitted exceptional.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant was made aware of her dismissal either before it took effect or at the time it took effect.
Action taken to dispute dismissal
The Applicant did not take any other action to dispute her dismissal.
Prejudice to the employer (including prejudice caused by the delay)
I do not accept that there is any prejudice to the Respondent if a further period to apply was allowed.
The merits of the application
In her application Mrs Lee explains that her father was a very unwell and they were advised by doctors this may be the end. She rang and took shifts off the next week which was with plenty of time for the Respondent to find someone else.
She says the reasons for the dismissal was that she was unreliable.
She explained she needed to undergo therapy to keep a birth defect under control and needed two days off after this therapy. She says she told a staff member she would need this time off, but they did not tell the woman who did the roster.
It is common ground between the parties that the Applicant worked as a casual employee.
The Respondent’s submission is that the Applicant was sent a letter to arrange a meeting and the Applicant responded with a text message saying she was not coming in, she was now not working, and it was much better for her. The Respondent submits therefore that the Applicant was not dismissed but resigned.
With regard to the minimum period of employment prescribed by section 382 of the Act to be protected from unfair dismissal the Respondent submits the Applicant’s casual employment was irregular. She was not employed on a regular or systematic basis and had no reasonable expectation of continuing employment on a regular and systematic basis and so her employment did not meet meets the minimum period required. Consequently, the Respondent submits the Applicant is unable to make this application.
The Commission when determining whether there are exceptional circumstances warranting an extension of time to file a late application does not conduct a full hearing into the merits of the matter or other jurisdictional objections.
Consequently, in this case the merits of the application are a neutral factor.
Fairness as between the person and other persons in a similar position
There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering all of the relevant factors here I am not satisfied that this case involves exceptional circumstances.
Consequently, I am not able to allow a further period for this application to be made. The application is made out of time and so is not properly before the Commission and must be dismissed.
An order [PR737433] to that effect will now be issued.
Printed by authority of the Commonwealth Government Printer
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