Christine Hodge v The Village Supermarket T/A Foodworks Lake Albert

[2015] FWC 1063

[2015] FWC 1063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christine Hodge
v
The Village Supermarket T/A Foodworks Lake Albert
(U2015/2226)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 16 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Ms Christine Hodge alleged that the termination of her employment by The Village Supermarket was unfair.

[2] Ms Hodge’s employment ended on 5 December 2014 and her application was not lodged until 8 January 2015. The unfair dismissal application was therefore not made within 21 days of the date of the dismissal

[3] The parties filed material in support and opposition to the granting of an extension of time and agreed that the matter could be determined on the papers.

[4] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances the Commission must have regard to the following criteria:

(a) the reason for the delay;

[5] On 24 December 2014, Mr Amnon Kelemen from Employee Assist e-filed two applications. The Commission’s e-filing email noted that there were two unfair dismissal applications lodged. One was said to be for Ms Hodge. However by mistake Mr Kelemen lodged another person’s application twice and did not lodge Ms Hodge’s application. On 8 January 2015, Mr Kelemen filed an application for Ms Hodge and advised that he had previously sent through the wrong application.

[6] It was submitted that the first application was titled correctly and made against the correct Respondent and only the Applicant’s name and details were incorrect.

[7] That is not correct. The dates of employment are different. To the extent the rest of the document is the same it is only so because it contains no useful information about the remedy sought by Ms Hodge or any explanation as to why Ms Hodge considered the termination was unfair. While the form is not pleading Mr Kelemen’s use of pro forma information does not assist a speedy resolution of the matter as the Respondent is not put on notice of the Applicant’s position before the conciliation conference.

[8] It was submitted that the error was an administrative error and that no extension of time was necessary. It was further submitted that if an extension of time was required then it was submitted that the reason for the delay was representative error.

(b) whether the person first became aware of the dismissal after it had taken effect;

[9] No submissions were put on this criterion. There is no evidence that Ms Hodge was not aware of the dismissal when it occurred. This weighs against granting an extension of time.

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

[10] No submissions were put on this criterion. There is no evidence that Ms Hodge took any steps to contest her dismissal. This weighs against granting an extension of time.

(d) prejudice to the employer (including prejudice caused by the delay);

[11] No submissions were put on this criterion. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[12] As there has been no consideration of the merits this criterion is neutral.

(f) fairness as between the person and other persons in a similar position.

[13] No submissions were put on this criterion. This criterion is neutral.

Conclusion

[14] I do not accept the submissions of Ms Hodge that no extension of time is necessary. An application is not made until it has been received by the Commission. It is clear that Mr Kelemen intended lodging two applications and he paid the fee for two applications. I accept that this was an in advertent mistake. Representative error is one factor to be considered when deciding if there are exceptional circumstances. In this case I accept that Ms Hodge was an innocent party.

[15] I find that there are exceptional circumstances warranting the granting of an extension of time. While Mr Kelemen has not exercised the professionalism one would expect of a paid agent, his mistake is not Ms Hodge’s mistake. In circumstances where she was unaware that her application had not been lodged it is difficult to see what steps she could have taken. Presumably if she had contacted her representative in this period she would have been told it had been lodged because that is what Mr Kelemen thought he had done. In those circumstances I am prepared to exercise my discretion to grant Ms Hodge an extension of time until 8 January 2015 to ledge her application and the application will now be referred to conciliation.

DEPUTY PRESIDENT

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