Gabriela Ermenegildi v NAB

[2016] FWC 5647

[2016] FWC 5647

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Gabriela Ermenegildi
v
NAB
(U2016/8332)

VICE PRESIDENT WATSON MELBOURNE, 22 AUGUST 2016

Application for relief from unfair dismissal – Application for extension of time for lodgement – Whether exceptional circumstances – Fair Work Act 2009, s.394.

[1] This decision, edited from a decision given on transcript on 12 August 2016, concerns an application to extend the time for filing an unfair dismissal remedy by Ms Gabriela Ermenegildi, arising from the termination of her employment by the National Australia Bank on 21 June 2016.

[2] The application in this matter was lodged one day after the 21 day time limit in section 394 of the Fair Work Act 2009 (the Act). Even though that is a small amount of time outside the time limit, the Act requires that the time limit be complied with and only extended in exceptional circumstances, taking into account the factors set out in s.394(3) of the Act.

[3] Ms Ermenegildi has given evidence about her concerns arising from the termination, and I have regard to that evidence and the submissions made by both of the parties.  Obviously the termination is a matter that has caused significant concern for Ms Ermenegildi. She has lost employment which continued for a considerable period with the National Australia Bank.

[4] I have had regard to all of those circumstances.  I am not satisfied that there has been an explanation as to the reason for the delay.  That is the case especially as Ms Ermenegildi was aware of the termination or the prospect of it well in advance of it occurring.  Ms Ermenegildi does dispute the dismissal and does submit that she should have been relocated to other locations.  She also wishes to have a statement of service and I note that Ms Irwin has indicated that the bank will look into that and ensure that a statement of service is provided to her.

[5] I am not satisfied that there is any prejudice to the employer by granting the extension.  As far as the merits of the application are concerned, it appears that the termination arose following a performance management process, which was quite extended and on a very preliminary view it does not appear to me that the merits of any unfair dismissal application are strong.  I do not think that there are other persons in similar positions which bear on the question of granting an extension of time in this matter.

[6] Having regard to those factors and the findings that I make in relation to those matters and all of the circumstances generally, I am not satisfied that there are exceptional circumstances warranting an extension of time being granted in this matter.  The authorities are quite clear.  The time limit in the Act is to be complied with and only departed from in exceptional circumstances.  As I said, I am not satisfied that exceptional circumstances are present in this case.  Therefore, I decline to grant an extension of time and the application for an unfair dismissal remedy is consequently dismissed. 

VICE PRESIDENT

Appearances:

Ms G Ermenegildi on her own behalf.

Ms K Irwin on behalf of NAB, with Ms K Howlett and Mr M Pretty.

Hearing details:

2016.

Melbourne.

12 August.

Final written submissions:

NAB on 2 August 2016.

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