Ingrid Schodde v Payless Shoes Pty Ltd T/A Payless Shoes
[2013] FWC 3254
•23 MAY 2013
[2013] FWC 3254 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Ingrid Schodde
v
Payless Shoes Pty Ltd T/A Payless Shoes
(C2013/3688)
COMMISSIONER DEEGAN | CANBERRA, 23 MAY 2013 |
Section 365 General Protections application - jurisdictional objection - application filed out of time - no exceptional circumstances - application dismissed.
[1] An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Ms Ingrid Schodde on 22 March 2013. Ms Schodde’s application was in relation to her dismissal by Payless Shoes Pty Ltd (the respondent). It was not clear from the application whether Ms Schodde had been dismissed on 27 November 2012 or 5 December 2012. It was clear that the application was not filed within 60 days after the dismissal took effect. On 3 May 2013, a hearing took place in order to determine whether, in accordance with the provisions of s.366 of the Act further time would be allowed for the filing of the application.
[2] On 1 January 2013, Fair Work Australia was renamed the Fair Work Commission (the Commission). In this decision I have referred to the Commission which incorporates reference to Fair Work Australia as it was known prior to 1 January 2013.
[3] As at the time of the applicant’s dismissal, s.366 of the Act provided the following:
366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA 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.
[4] In support of her application for further time to be allowed for filing of the application, Ms Schodde filed a statutory declaration with numerous attachments and gave evidence at the hearing. Much of the documentary evidence filed by Ms Schodde was not relevant to the question of the reasons for the delay in filing or to the merits of the substantive general protections application.
[5] Essentially Ms Schodde attributed her failure to lodge the application within the prescribed statutory period as resulting from;
- The complexities of the several claims she had against her employer (who was in administration);
- Conflicting advice she received from the various government and other agencies she had contacted; and
- The time she required to research and prepare her application given that she did not have the benefit of legal assistance.
[6] It was also apparent from Ms Schodde’s evidence that;
- She first received advice that she might be able to make a s.365 (general protections) application in early December 2012;
- She was advised in writing by staff of the Fair Work Ombudsman (FWO) that she may be able to make a general protections claim on 14 January 2013;
- She was advised in writing by staff of the Commission on 5 February 2013 that if she wished to lodge a s.365 application she should do so on the correct form (Form F8).
[7] Ms Schodde also claimed that she had made her first general protections claim (albeit not on a Form F8) to the FWO on 14 January 2013 and that she had also forwarded that claim to the Commission on the same day. She stated that she had received advice from the Commission that her claim was not within the jurisdiction of the Commission but more properly a matter for the FWO.
[8] Ms Schodde’s evidence also covered the numerous phone calls she had made seeking advice in December 2012 and January 2013. She noted that during those months she had not been well, had been required to house sit for her parents while they were absent and had enrolled in a summer school in Sydney. Ms Schodde claimed that all these factors contributed to her delay in filing the application.
[9] Solicitors for the respondent’s administrators filed submissions objecting to further time being allowed for the application claiming that:
- The applicant commenced employment on 6 August 2012 and the respondent was placed into administration on 21 September 2012;
- The applicant was dismissed for performance reasons on 27 November 2012 and did not work after that date.
[10] The Respondent noted the following:
On 14 January 2013, the Applicant forwarded a letter to a number of employees of Deloitte Touche Tohmatsu, to TressCox Lawyers, the Fair Work Ombudsman, the Australian Taxation Office, the Australian Prudential Regulatory Authority and the Australian Human Resources Institute. The covering email to this letter stated that the Applicant had some concerns about her termination, queried whether she had received her correct entitlements and whether the Administrator was being kept properly informed about aspects of the Respondent’s operations while in administration. However, the content of the letter related to the Applicant’s concerns about her superannuation entitlement. 1
[11] The Respondent also noted that the applicant, by the letter of 14 January, sought to have her frozen superannuation entitlements transferred to her and her Employment Separation Certificate amended to alter the reason for termination.
[12] The Respondent further submitted that nothing advanced by the applicant regarding the reason for her delay in filing amounted to exceptional circumstances and that the respondent would suffer prejudice as a consequence of the delay as the respondent had ceased trading and no longer employs the people referred to in the applicant’s complaint.
Consideration and Conclusion
Reason for the delay
[13] Essentially the applicant claimed that the reason for the delay in filing the application was the conflicting advice she received from various agencies together with the complicated circumstances surrounding her claim. According to her evidence she spent the period from 5 February 2013 (the date she was advised that she was required to lodge a Form F8 in order to make a s.365 application) until 22 March 2013 preparing her claim for lodgement.
Action taken to dispute the dismissal
[14] The applicant claimed to have first lodged a “complaint” with the Commission on 14 January 2013, within the required 60 day time period.
[15] Having reviewed the numerous documents provided by Ms Schodde in support of her application, I am unable to find that she ever clearly contested her dismissal (other than to question her entitlements and request that the reason given for the dismissal on her Employment Separation Certificate be amended) prior to lodging this application. On the face of the “complaint” which she had sent on 14 January 2013 to numerous agencies (including the FWO, the Australian Taxation Office, the Australian Prudential Regulatory Authority and the respondent’s administrators) and copied to the Commission, the applicant was querying her entitlements and requesting that these be paid to her. Within the body of the document there is a passing reference to one allegation which could conceivably form the basis for a general protections claim if made out. I do not consider that this reference constitutes a “claim” under the general protections provisions of the Act and in any case it was not on the correct form, as required by the Fair Work Australia Rules 2010.
Prejudice to the employer
[16] I accept the submission that the respondent would suffer prejudice if further time was allowed for the applicant to lodge her claim. The applicant was aware at the time of the dismissal that the respondent was in receivership. She was also aware that the company was being wound up and employees paid out. In those circumstances it was in her interest to lodge her claim quickly and at least within the time allowed under the Act as it stood at the time of the dismissal. She failed to do so.
The merits of the application
[17] I make no finding as to the merits of the application other than I am unable, in the absence of evidence, to determine that the application is totally without merit.
Fairness as between the person and other persons in a like position.
[18] This criterion has no application to the circumstances of this matter.
Exceptional circumstances
[19] Nothing in the matters put before me have satisfied me that exceptional circumstances exist in relation to the late filing of this application such that further time for filing should be allowed.
[20] I find, on the evidence, that the applicant was aware of the existence of the general protections jurisdiction of the Commission within one week of her dismissal taking effect. Further she received advice from the FWO about the process for making such a complaint in January 2013 and was directed by the Commission to the correct form for making the complaint on 5 February 2013. Even if the complications referred to by the applicant offered some excuse for the failure to file prior to 5 February 2013, I take the view that there is nothing exceptional about the circumstances which resulted in the applicant failing to file the application for a further 45 days.
[21] In all the circumstances I refuse to allow any further period for filing of the application. The application is dismissed.
COMMISSIONER
Appearances:
The applicant in person.
Ms K. Horan (by telephone) for the respondent
Hearing details:
2013.
Canberra:
May 3.
1 Paragraph 2.4 of the Respondent’s written submissions filed 2 May 2013.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR537174 >
1
1
0