Claire Dowling v Dundas Road Tavern and Restaurant T/A Boab Tavern

[2014] FWC 87

[2014] FWC 87

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Claire Dowling
v
Dundas Road Tavern and Restaurant T/A Boab Tavern
(C2013/6711)

COMMISSIONER WILLIAMS PERTH, 7 JANUARY 2014

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Ms Claire Dowling (Ms Dowling or the applicant) under section 365 of the Fair Work Act 2009 (the Act).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (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:

“366 Time for application

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

(a) within 21 days after the dismissal took effect; or

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

(2) The FWC may allow a further period if the FWC 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] Ms Dowling’s application states that she was dismissed on 20 June 2013. Her application was made on 7 November 2013. Ms Dowling’s application was made after the 21 day time limit had passed.

[4] Consequently I wrote to Ms Dowling explaining the requirements of section 366 of the Act and invited her to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[5] Ms Dowling has provided a written submission as has the respondent in reply and this decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there are exceptional circumstances?

The reason for the delay

[6] Ms Dowling has explained in some detail what she did following her dismissal in June 2013 through to the time of making this application in early November 2013.

[7] Ms Dowling says that she did not get her separation certificate until later than 21 days after her dismissal and she thought as a consequence she could not dispute her dismissal until she had received her separation certificate. Ms Dowling’s assumption about this is incorrect and her misunderstanding on this is not an acceptable reason for delaying making this application.

[8] Ms Dowling says that in August and September of 2013 she undertook a four week business course through a NEIS provider on how to start a micro-business. I conclude that if Ms Dowling was capable of participating in such a training programme for this extended period she was also during this time capable of making this application.

[9] I accept that there were some periods of time when Ms Dowling because of her health was not able to make application. Specifically I accept that she was hospitalised between 14 September and 1 October 2013 and during this time was unable to make this application.

[10] Ms Dowling says that she contacted WorkCover in October 2013 and also around this time intensively sought advice on her rights. Given her capacity to take these actions at this time I conclude that during this period she was capable of make this application.

[11] Ms Dowling says she worked a number of days between 29 October 2013 and 5 November 2013. Again I would conclude that during this period the applicant was capable of making this application.

[12] Considering the applicant’s various reasons for the delay in making this application I am not satisfied that these reasons satisfactorily explain all of the delay between 20 June 2013 and 7 November 2013. I am satisfied that there were significant periods during this time when Ms Dowling was capable of making this application but did not.

[13] It is well established that the fact a dismissed employee is not aware of their rights, including that there is a time limit within which to make an unfair dismissal application, is not an acceptable reason for a delay in making such an application.

[14] The reasons for the delay in this case are not acceptable reasons in my view.

Any action taken by the person to dispute the dismissal

[15] There is no evidence that the applicant took any action to dispute her dismissal other than the making of this application.

Prejudice to the employer (including prejudice caused by the delay)

[16] There was a significant delay in this matter however there is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[17] It is not clear from the application what the alleged contraventions of the general protections provisions are. There is little information about the reasons for the applicant’s dismissal provided by the applicant. There are a number of references in the application to the applicant’s health in regards to her back prior to her dismissal.

[18] The respondent asserts that the applicant was dismissed because of leaving her shift early and that this had occurred on many occasions. The respondent asserts the dismissal of the applicant was not because of her illness or injury.

[19] An extension of time application such as this is does not involve a full consideration of the merits of the substantive application.

[20] On the limited information provided by the parties I conclude that the merits of the application are a neutral factor in determining the application for an extension of time.

Fairness as between the person and other persons in a similar position

[21] There is no information regarding fairness between the applicant and other persons in a similar position.

Conclusion

[22] The onus is on the applicant to provide evidence and submissions that would persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. In this case there are not acceptable reasons for all of the delay in making this application. None of the other factors when considered in this matter positively support the Commission extending time.

[23] I have considered the information provided by the applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[24] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and is dismissed. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 23 November 2013.

Respondent, 12 December 2013.

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