Ethelreda Pereira v Department of Human Services

[2012] FWA 3782

[2012] FWA 3782

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.773—Termination of employment

Ethelreda Pereira
v
Department of Human Services
(C2012/2603)

COMMISSIONER RYAN MELBOURNE, 7 MAY 2012

Application for unlawful termination - application significantly out of time.

[1] A decision was given in transcript on 1 May 2012 dismissing this application. An edited version of this decision is given below.

[2] The application is an application to deal with an unlawful termination. The application was filed on 8 February 2012 and the applicant identified that the date of termination was 4 December 1981, in which case it’s well and truly outside the 14-day time limit that is specified in, or the 60-day time limit specified in the legislation.

[3] The jurisdictional point that immediately arises is whether or not the tribunal should allow an extension of time. The tests for an extension of time relate to whether or not there are exceptional circumstances. In this matter it doesn’t appear to me that there are any exceptional circumstances which have been put forward by the applicant which would satisfy an extension of time under section 774 subsection 2. That section reads:

“FWA may allow a further period if FWA is satisfied that there are exceptional circumstances taking into account (a) the reason for the delay, and (b) any action taken by the employee to dispute the termination, 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 like position.”

[4] The only material I have before me is the substance of the application. Whilst that makes clear that the applicant has taken action since December 1981 to dispute the termination, there is nothing put within the application which explains the reason for the delay in making an application to this tribunal or the predecessor tribunal. There’s nothing in the material which would suggest that there are any merits attached to this application. Having considered the material that is put by the applicant as part of its application, it is not possible in my view to come to a conclusion that the application has any merit whatsoever. It is clear that the applicant has a very clear perception of wrongdoing but there is nothing within the material that would suggest that the application has any merit.

[5] I am also required to consider prejudice to the employer, the employer being an arm of the state government in whatever manifestation, whether it was a department, a statutory authority or a business unit standing alone. Given that it is the state government, it doesn’t appear to me that prejudice would flow in terms of matters that might relate to financial prejudice but, quite clearly, where termination occurred on 4 December 1981, it is clear to me that prejudice would flow to the employer in that the length of time is such that, even the most conservative of employers, and I use that in terms of conserving information, even the most conservative of employers would not necessarily keep accurate records going back to December 1981, in which case issues that have been raised by the applicant in the application would be difficult to examine in any jurisdiction, whether it be before this tribunal or whether it be ultimately before a court. In that sense then, there would be prejudice caused by the delay to the employer.

[6] The fairness as between the person and other persons in like position is also a criterion that I must consider. It’s difficult to imagine what other person would be in a like position given that this appears to be such an unusual application in that it is made so far after the initial event. However, I would consider that fairness as between the applicant and other persons in like position would not sway me to grant an extension of time of the length sought. Persons in a like position, I would have thought, would have had the benefit of advice at some point in the last 30 years to enable proper action to have been undertaken. And given that there are some issues that relate to the health of the applicant over that period of time, fairness would have suggested that persons in a like position would have sought advice through professional services of some description or another in a period which would have enabled an application even if it was out of time to be made much earlier than 30 years after the event.

[7] I intend to dismiss the application on the basis that the application was not made within 60 days after the employment was terminated but, if such an application had have been made 31 years ago, the jurisdiction was so different that it would not have been an application in any event under the Fair Work Act nor it would have been an application under the Workplace Relations Act nor an application under the Industrial Relations Act. It would have been an application under the Conciliation and Arbitration Act and I’m not even certain that 31 years ago there was a particular jurisdiction under the Conciliation and Arbitration Act that related to this particular matter.

[8] But there is nothing in the material put before me which would have me exercise the discretion to allow an extension of time of 31 years to enable the applicant to make this application. Thank you for your attendance. I dismiss the application on the basis that it has not been made in accordance with the requirements of the Act.

COMMISSIONER

Appearances:

No appearance by the Applicant

C. Fenner and J. Steadall for the Department of Human Services

Hearing details:

2012
Melbourne
1 May

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