Glenda McLean v Stawell Medical Centre T/A C/ Stawell Regional Health

[2014] FWC 1708

[2014] FWC 1708

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Glenda McLean
v
Stawell Medical Centre T/A C/- Stawell Regional Health
(C2013/7714)

COMMISSIONER BISSETT MELBOURNE, 13 MARCH 2014

Application to deal with contraventions involving dismissal - jurisdictional objection - application made out of time.

[1] Ms Glenda McLean (the Applicant) has made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment with Stawell Medical Centre (the Respondent) was terminated in breach of the general protections provisions. Ms McLean made her application on 16 December 2013. Her employment was terminated on 21 November 2013. Ms McLean made her application 25 days after her employment was terminated by the Respondent.

[2] The Respondent has lodged a jurisdictional objection to the application on the grounds that it has been made outside the statutory time limit specified in s.366(1)(a) of the Act.

[3] On 31 January 2014 I issued directions for the filing of material by the Applicant and the Respondent on the jurisdictional objection. These required that:

• The Applicant file and serve any witness statements and submissions as to the extension of time matter by 4.00pm Friday 14 February 2014;



• The Respondent file and serve its witness statements and submissions as to the extension of time matter by 4.00pm Friday 28 February 2014;



• The Applicant file and serve any submission in reply by 4.00pm Friday 7 March 2014.

[4] In issuing those directions it was made clear to the Applicant that her submissions needed to address ‘those matters in s.366 of the Act.’ Section 366 of the Act was set out in full as part of the directions.

[5] The Applicant failed to file any material in accordance with the directions by 14 February 2014. On 17 February my associate contacted the Applicant and advised her that if she intended to pursue her application she was required to file and serve her submissions by 5.00pm Wednesday 19 February.

[6] As a result of this request the Applicant forwarded to the Commission ‘a few pieces of correspondence that pertain to the matter.’ 1

[7] The Respondent filed and served its submissions in accordance with the directions. On 7 March 2014 further material was received from Dawn who said she was the Applicant’s Administrative Assistant.

[8] In a telephone conference of the parties on 11 March 2014 it was agreed that the Commission should determine the question of the extension of time on the basis of the material filed by the parties. The Applicant indicated she would like another telephone conference to put more material. It was confirmed however that this material went to the Applicant’s application under s.365 rather than the application for an extension of time. It was therefore not relevant to the matter to be decided.

Legislative matters

[9] Section 366 sets out the requirements for the time within which an application under s.365 of the Act is required to be made and the grounds on which the Commission may allow an extension of time for that application:

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; 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 a like position.

[10] I have considered each of these matters in reaching my conclusion.

Consideration

[11] It is apparent from the material filed by the Applicant that she wrote to the Commission indicating that she wished to apply for remedy from unfair dismissal. The letter is dated 2 December 2013, but post-marked 6 December 2013. It was received by the Commission’s registry on 10 December. The same day the registry staff apparently replied to her enclosing a Form F2 - Unfair Dismissal Remedy Application. That correspondence indicates that the legislation required she file her application within 21 days of the dismissal.

[12] The Applicant hand wrote a note on the letter from registry as follows:

Following discussions with Anita find enclosed Form F8 to apply for FWA to deal with a General Protections Dispute.

G McLean

(phone number)

11/12/13.

[13] The letter from the registry with the Applicant’s hand written note was attached to her s.365 application faxed to the Commission on 16 December 2013, 2 five days after she added the handwritten note. On this basis of the hand written date on the note it is reasonable to infer that the Applicant received the letter sent by the Registry staff on 11 December 2013.

[14] Had the Applicant lodged her application with the Commission on the date of her hand written note (i.e. 11 December 2013) her application would have been made within the time prescribed by the Act. There is no explanation from the Applicant as to why she did not do so.

[15] The Applicant indicates in her submission of 7 March 2014 that her ‘initial approaches to the Commission were made within the statutory time frame’ and that ‘she has had difficulty responding to all correspondence following her election to Local Government in recent times.’ The relevance of this to the delay in making her initial application and hence the matter I must decide is not clear.

[16] The Applicant has not provided any reason for the delay in lodging her application. It is not the role of the Commission to infer some reason where there is no basis for such an inference. The Applicant has provided nothing on which any conclusion or inference as to the reason for the delay could be drawn.

[17] It is clear that the Applicant contacted the Commission sometime around 2 December 2014 with respect to an unfair dismissal application. There is no evidence or indication that such an application was made or that the Applicant took any other steps to dispute her dismissal prior to lodging her application under s.365 of the Act.

[18] Whilst the Respondent suggests it would be prejudicial to it to grant an application or an extension of time I am not convinced this is the case. The application was lodged five days late and this delay alone would not seem to create prejudice.

[19] The material filed by the Applicant in support of her application as provided to the Commission suggests no merit to her claim but this is caused by her failure to list or describe any contravention of the Act. I have had some, but not substantial regard to this in coming to my conclusion.

Conclusion

[20] There is nothing exceptional about the circumstances of this application such that an extension of time should be granted for making the application.

[21] In correspondence to the Applicant on 23 January 2014 the Applicant was advised of the jurisdictional objection of the Respondent. That section of the Act (and therefore the matters the Commission must consider) relevant to an extension of time was clearly set out for the Applicant. This information was repeated, and the Applicant advised she should address each of the matters in s.366 of the Act, in the directions issued by the Commission. Further information and clarification of the process was provided to the Applicant, along with an opportunity to provide the further ‘documentation’ she thought necessary, in an email to her from my chambers on 20 February 2014.

[22] The Applicant contends that:

It would have been helpful, that on acceptance of the application under the revised grounds that a simple 1 page document had been sent out to Mrs McLean about the required steps in this process to her as a person who had not lodged an application before. 3 (sic)

[23] This does not go to the issue at hand, in particular, that the application was late and the need for the Commission to receive submissions as to why the application should be accepted.

[24] The Applicant says she was in contact with Commission staff within the statutory timeframe but this is no excuse for a failure to lodge material within the required timeframe. There is nothing to suggest that the Commission staff were a cause for her delay in making the application.

[25] In all of the circumstances I find that there are no exceptional circumstances such that I should extend the time for making her application.

[26] The application is dismissed. An order to this effect will be issued.

COMMISSIONER

Final written submissions:

Respondent, 28 February 2014.

Applicant, 7 March 2014.

 1   Applicant’s submissions received 19 February 2014.

 2   See the covering sheet to the Form F8 lodged by the Applicant.

 3   Applicant’s submission received 7 March 2014.

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