Helen McKinnon v Mildura Gateway Tavern

[2014] FWC 1969

[2014] FWC 1969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Helen McKinnon
v
Mildura Gateway Tavern
(U2014/4716)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 MARCH 2014

Application for relief from unfair dismissal.

[1] Mrs Helen McKinnon was dismissed from her employment by Mildura Gateway Tavern on 24 January 2014. She posted her unfair dismissal application to the Fair Work Commission (the Commission) by express post at 10am on 13 February 2014, but it was not delivered to the Commission until 17 February 2014.

[2] The application was therefore not made within 21 days of the date of the dismissal.

[3] Section 366(2) of the Fair Work Act 2009 (the FW Act) provides as follows:

The Commission may allow a further period for the application to be made by a person under subsection (1) if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay;

[4] Mrs McKinnon gave evidence that she did not know she could make an unfair dismissal application until the Tuesday or Wednesday before she posted her application when her son told her she should lodge an application. She then downloaded the form from the Commission website and posted the application on the Thursday morning. It was her evidence that letters posted by express post are delivered the next day.

[5] When asked why she had not lodged the application either by email or by phone, Mrs McKinnon said she was not familiar with the process.

[6] Mrs McKinnon’s explanation for part of the delay in lodging the application relies on her ignorance of her rights and the process to be used to lodge an application. She also stated that she was very distressed by her dismissal. It is not unusual for people in Mrs McKinnon’s position to be distressed. It is also not unusual for people to be ignorant of their rights or the processes for lodging an application. I do note however that on the Commission’s website the requirement to lodge within 21 days is prominently displayed as is the advice that the application can be lodged by email or by telephone. Mrs McKinnon’s explanation for not posting her application until the day before it was due weighs against the granting of an extension of time.

[7] Mrs McKinnon’s explanation for the delay is sheeted home to Australia Post who failed to deliver an express post letter the next day.

[8] Mrs McKinnon relied upon the information provided by Australia Post on its website to contend that the application had been delivered to the Commission at 5pm on 14 February 2014 but “unfortunately you did not open it until Monday 17th.” 1 However an examination of the Australia Post website did not disclose that it was delivered to the Commission at 5pm on 14 February 2014. The website advised that it was processed at Port Melbourne at 4.02am and it was “delivered” at Port Melbourne at 5pm. There was no evidence to support the contention that the application was delivered to the Commission at 5pm.

[9] While it was not unreasonable for Mrs McKinnon to rely upon Australia Post’s promise of next day delivery, given the importance of complying with the time limits set down by the FW Act and that only if there are exceptional circumstances can time be extended, relying on Australia Post promise of next day delivery was risky. However I am prepared to weigh this in favour of granting an extension of time.

[10] However taking into account that Mrs McKinnon had the full 21 days to lodge her application, the substantive reason for delay was the length of time it took Mrs McKinnon to ascertain that she could contest her unfair dismissal, the reasons for delay weighs against the granting of an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[11] It is not disputed that Mrs McKinnon was aware of the dismissal on the day it occurred and that she had the full 21 days in which to lodge her application. This weighs against the granting of an extension of time.

(c) any action taken by the person to dispute the dismissal;

[12] Mrs McKinnon gave evidence that she did nothing other than lodge this application to dispute her dismissal. This weighs against the granting of an extension of time.

(d) prejudice to the employer (including prejudice caused by the delay);

[13] No submissions were put that there was any prejudice to the employer. This criterion is neutral.

(e) the merits of the application;

[14] Mildura Gateway Tavern submitted that the dismissal was fair but no detailed submissions were put to support this conclusion. There is clearly a factual dispute between the parties about the events on 24 January 2014. It is not possible to make an assessment of that evidence at this time. In the circumstances I am prepared to accept that Mrs McKinnon had an arguable case and this weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[15] No submissions were made on this criterion.

Conclusion

[16] I am unable to conclude, weighing up all the criteria, that there are exceptional circumstances warranting an extension of time. Mrs McKinnon took no steps to find out about her rights until 2-3 days before the 21 day time limit expired. Upon finding out that she had a right to file an unfair dismissal application she waited until the day before the 21 day time limit expired to post her application albeit by express post. The combination of these factors do not provide a reasonable explanation for the delay and, when considered along with the other criteria, does not constitute exceptional circumstances and therefore the application for an extension of time is dismissed.

DEPUTY PRESIDENT

Appearances:

H. McKinnon on her own behalf.

J. Sweetman for the Respondent.

Hearing details:

2014.

Melbourne:

24 March.

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