Feryal Guidetti v Knox Private Hospital

[2014] FWC 2913

[2014] FWC 2913

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Feryal Guidetti
v
Knox Private Hospital
(U2014/6127)

DEPUTY PRESIDENT SMITH MELBOURNE, 9 MAY 2014

Application for relief from unfair dismissal—jurisdictional objection—out of time.

[1] The following decision, now edited, was issued during proceedings conducted on 2 May 2014.

[2] This is an application for an extension of time in which to lodge an application alleging that the termination of the applicant was harsh, unjust or unreasonable. In considering whether or not an extension of time should be granted the Commission looks to s.394(3) of the Fair Work Act 2009 (the Act)—and I propose to examine each of those matters.

[3] Section 394 of the Act provides:

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.

(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.

[4] Section 394(3)(a) provides for an examination of the reason for the delay. In this situation the applicant indicated that she believed that her ex-employer had put a confidentiality requirement upon her and that she was unable to discuss or deal with the matter and it was only after she had subsequently decided to discuss the matter with her family and friends that she decided to lodge the application.

[5] The next item requiring consideration, s.394(3)(b) whether the person first became aware of the dismissal after it had then taken effect, I think there is no issue here that the applicant became aware of the dismissal on the date that it occurred, namely 3 March 2014.

[6] Section 394(3)(c) relates to any action taken by the person to dispute the dismissal and in this matter there was no action taken until the time that the applicant decided that she would, having had advice from family and friends, lodge the application.

[7] In relation to s.394(3)(d), I make a neutral finding.

[8] Section 394(3)(e) deals with the merits of the application and the facts of this matter appear not to be in dispute. The applicant claimed to be unwell, advised her supervisor accordingly and left the employer’s premises two hours before the end of the rostered shift on 3 February 2014. The applicant signed a timesheet claiming 1.5 hours of personal leave on that day. The applicant commenced employment with another employer 30 minutes prior to her scheduled shift finishing time with the first employer. The applicant argues that she was unwell and then felt better, allowing her to go to her second job. The first employer discovered this and provided the applicant with a letter setting out the allegations and advised the applicant to go home and not to discuss the contents of the letter. The applicant was subsequently dismissed.

[9] Section 394(3)(f), requires that I decide whether or not the reasons given by the applicant could be reasons used by other persons and therefore render almost inoperative the statutory requirement for lodging the application. I will deal firstly with the applicant’s belief that she should not disclose the terms of the letter. In this regard, I accept that the applicant believed that she should not have disclosed the terms of the letter prior to the interview and being dismissed. However, having been dismissed, it’s clear that persons can raise with this Commission, or any other Court of competent jurisdiction, matters which concern them about the termination of their employment. That, in itself, is not an exceptional circumstance.

[10] The next matter is then having the friends and family advice to take the action. Again, ignorance of the timeframe and subsequent concern about the dismissal does not lead to an exceptional circumstance. This has been held on a number of occasions in Full Bench decisions of the Commission.

[11] Returning to the merit of the application I only say this section of the Act is designed to examine whether or not, on the applicant’s own case, it is wholly without merit, not whether or not there is an issue going to merit. Having examined the facts of this case, which are largely undisputed, the applicant may well have a difficult time in seeking to have a remedy arising from the unfair termination.

[12] It follows then, that it would not be unfair not to extend time. I find there are no exceptional circumstances in this matter and I don’t accept the time period and I don’t extend the time period.

DEPUTY PRESIDENT

Appearances:

F. Guidetti on her own behalf.

L. Kwek on behalf of the respondent.

Hearing details:

2014.

Melbourne:

2 May.

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