Elizabeth Aitken v Illumination Australia Pty Ltd T/A Illumination Solar

[2013] FWC 9334

[2013] FWC 9334

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Aitken
v
Illumination Australia Pty Ltd T/A Illumination Solar
(U2013/12256)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 NOVEMBER 2013

Application for relief from unfair dismissal - extension of time - granted.

[1] Ms Elizabeth Aitken’s employment was terminated by Illumination Australia Pty Ltd (Illumination Australia) on 25 June 2013. On 6 August 2013 she lodged an application under s.394 of the Fair Work Act 2009.

[2] The application was not lodged within 21 days of the dismissal 1 and hence Ms Aitken sought an extension of time to permit her application to be heard. The parties filed witness statements and submissions in relation to the matter. Relevantly, Illumination Australia did not object to the granting of the extension of time. I therefore determined to deal with the application of the papers. On 22 November 2013, I determined to grant Ms Aitkin an extension of time to lodge her application. These are my reasons for doing so.

Background

[3] On 26 June 2013, Ms Aitken engaged lawyers. She was aware that her unfair dismissal application had to be lodged within 21 days. She was advised by her lawyer that the deadline “could be sorted out as the parties could agree to extend the time limit.” 2 On 3 July 2013, Ms Aitken instructed her lawyers to prepare her unfair dismissal application and to lodge it on 5 July 2013 if the dispute was not resolved. On 5 July 2013, she instructed her solicitors to lodge the unfair dismissal application. Had her solicitors followed her instructions her application would have been lodged in time. An application and covering letter was prepared by her solicitors on 8 July 2013 but it was not filed.

[4] On 9 July 2013, Ms Aitken had discussions with her lawyers about informal settlement discussions with Illumination Australia and as a consequence the unfair dismissal application was not filed. Those discussions occurred on 11 July 2013 and on 12 July 2013, Illumination Australia wrote to Ms Aitken’s lawyers advising that they consented to an extension of time being granted until 31 August 2013.

[5] The discussions between the parties did not resolve the matter and on 5 August 2013 Ms Aiken instructed her lawyers to file the application which they did on 6 August 2013.

The matters to be considered

[6] Section 366(2) of the Act provides as follows:

FWC may allow a further period for the application to be made by a person under subsection (1) if FWC is satisfied that there are exceptional circumstances, taking into account:

(a) The reason for the delay

[7] While Ms Aitken was aware of the time limit for lodging her application she accepted the advice of her lawyers that parties could agree to extend time for the lodging of the application. General Counsel for Illumination Australia who advised that consent for the extension of time was given by them gave evidence that “he assumed that such consent would be effective or [her solicitors] would not have asked for it.” 3

[8] I accept that Illumination Australia provided its consent in good faith.

[9] Both Ms Aitken’s lawyers and General Counsel for Illumination Australia were of course wrong in their views. Parties cannot consent to an extension of time. However, Ms Aitken who promptly sought legal advice about her dismissal was entitled to rely on the advice she received from her lawyers.

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

[10] Ms Aitken was aware of the dismissal at the time of the dismissal.

(c) Any action taken by the person to dispute the dismissal

[11] Ms Aitken promptly disputed her dismissal and Illumination Australia was aware that she intended contesting the dismissal if the matter was not resolved.

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

[12] No submissions were made that there is any prejudice to the employer.

(e) The merits of the application

[13] Illumination Australia submitted that the dismissal was consistent with the Small Business dismissal code. It submitted that the merits are neither in the Applicant’s favour or neutral.

[14] Ms Aitken disputes the reasons for the dismissal.

[15] Illumination Australia submitted that there was sufficient material before the Commission to determine the factual dispute. I do not agree. There is a significant factual dispute between the parties which cannot be resolved at this stage of the proceedings.

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

[16] No submissions were made on this criterion.

Conclusion

[17] Ms Aitken relied upon the legal advice provided by her lawyers. She also mistakenly assumed that because general counsel for Illumination Australia consented to the course of action proposed by her lawyers that consent was able to be given to an extension of time application. Ms Aitken instructed her lawyers to file her application in time and they did not do so. She promptly contested her dismissal and Illumination Australia suffers no prejudice. For these reasons there are exceptional circumstances warranting Ms Aitken being granted an extension of time to lodge her application.

DEPUTY PRESIDENT

 1 Section 394(2) of the Act.

 2 Witness Statement of Elizabeth Aitken at [6].

 3 Witness Statement of Joel Cranshaw at [12].

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