Georgia De Garis v Steambrook Pty Ltd T/A Seed Heritage

[2016] FWC 3779

[2016] FWC 3779

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Georgia De Garis
v
Steambrook Pty Ltd T/A Seed Heritage
(U2016/2019)

VICE PRESIDENT WATSON MELBOURNE, 9 JUNE 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 3 June 2016, concerns an application for an extension of time to lodge an unfair dismissal application by Ms Georgia De Garis arising from the termination of her employment by Steambrook Pty Ltd T/A Seed Heritage.

[2] The termination took effect on 8 April 2016.  It was communicated orally on 29 March 2016 and was confirmed in various communications in the intervening period.

[3] The application for an unfair dismissal remedy was filed on 2 May 2016 which was the Monday following the expiry of the 21 days after the termination took effect.  So the time limit for lodging an application was Friday, 29 April, and the application was filed the following Monday which is three calendar days outside the limit.

[4] The test that I am required to apply is set out in s.394(3) of the Fair Work Act 2009 (the Act) and it provides that the Commission can only allow an extension of time for filing an application if it is satisfied that there are exceptional circumstances, taking into account a number of specified factors.  In other words, the time limit in the Act is expected to be complied with and only extended in exceptional circumstances.

[5] I have regard to each of the factors that are spelt out in s.394(3). The first factor is the reason for the delay. I am not satisfied that any strong or compelling reason for the delay has been advanced. Ms De Garis was aware of the termination prior to it taking effect and had the opportunity to look at challenging that from that point.

[6] It is said that there was communication prior to and after the termination in relation to written confirmation of the termination and the amount of payment in lieu of notice and only when that was finally clarified did Ms De Garis commence preparing the application in the latter part of April of this year.

[7] That matter, the question of payment, is different to a challenge as to the merits of the termination which is the subject matter of this application and I am not satisfied that a reason for delay of any substance has been advanced.

[8] The second factor concerns when the applicant became aware of the dismissal and whether it was after it had taken effect.  In this case, Ms De Garis became aware prior to it coming into effect.

[9] The third factor is action taken to dispute the dismissal and it appears that the communications related more to the nature of payments and also the prospect of work of a different nature in a different role, rather than action taken to dispute the dismissal in the way now sought to be done by this application.

[10] The next factor is prejudice to the employer including prejudice caused by the delay.  The delay was very minor and I do not consider that there is any prejudice caused by the delay in this case.

[11] The next factor is the merits of the application.  The termination was on performance grounds after a performance management process.  Ms De Garis contends that there was insufficient time to establish satisfactory performance and insufficient training in the role to warrant termination shortly after being promoted into this role.  I have regard to those considerations and in a very preliminary way what the parties have said about the reasons for termination and their view as to the fairness of the termination. My view, again on a very preliminary basis, is that the merits of the application are not strong.

[12] The final factor concerns fairness between Ms De Garis and other persons in a similar position.  I am not aware of others in a similar position and I do not consider that that factor has any significant bearing on the matter.

[13] Having regard to all of those circumstances and the findings that I have just described, I am not satisfied that there are exceptional circumstances in this matter that warrant an extension of time being granted.

[14] The application for an extension of time is denied and the application for an unfair dismissal remedy is dismissed.

VICE PRESIDENT

Appearances:

Ms De Garis, G on her own behalf.

Ms Packer, P on behalf of Steambrook Pty Ltd T/A Seed Heritage.

Hearing details:

2016.

Melbourne.

3 June.

Final written submissions:

Ms De Garis on 17 May 2016.

Steambrook Pty Ltd T/A Seed Heritage on 26 May 2016.

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