Iris Pagalia v Shevron Industries Pty Ltd

[2015] FWC 240

[2015] FWC 240

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Iris Pagalia
v
Shevron Industries Pty Ltd
(U2014/14363)

COMMISSIONER WILLIAMS PERTH, 14 JANUARY 2015

Termination of employment - extension of time.

[1] Mrs Iris Pagalia (Mrs Pagalia or the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Shevron Industries Pty Ltd (the respondent).

[2] Mrs Pagalia was dismissed on 25 September 2014 on which day she was notified of the dismissal and that it took effect that day. The application was made on 17 October 2014.

[3] The application has been lodged one day more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in section 394 of the Act below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

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

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[5] Submissions have been provided on behalf of Mrs Pagalia by her representative.

Are there exceptional circumstances?

The reason for the delay

[6] The applicant’s representative, Mrs Moleirinho, has advised that the error in making this application one day after the 21 day period had passed was her responsibility. She advises that she arranged for the applicant to sign the application on 13 October 2014 and I note that the application lodged is dated 13 October 2014 below the applicant’s signature.

[7] The applicant’s representative states however that she did not post the application until 16 October 2014.

[8] The application was received by the Commission the following day on 17 October 2014 and the envelope received has a date stamp from the South Lake post office of 16 October 2014.

[9] The applicant’s representative explains that she had presumed that the time allowed to make the application was 21 working days, rather than calendar days, and this was her misunderstanding.

[10] Considering the explanation for the delay I am satisfied what occurred in this instance was due to representative error and that this is an acceptable reason for the one day delay in making the application.

Whether the person first became aware of the dismissal after it had taken effect

[11] The applicant was advised of the dismissal on the same day it took effect.

Any action taken by the person to dispute the dismissal

[12] The applicant has not otherwise sought to dispute her dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[13] Given the delay is only of one day there can be no prejudice to the employer if a further period to apply was allowed.

The merits of the application

[14] The parties have provided their views on the merits or otherwise of Mrs Pagalia’s dismissal. Based solely on the information provided by the employer there does appear to have been a valid reason to dismiss the applicant however I note that the applicant apparently disputes some of these matters, raises examples herself of what she says was inappropriate behaviour by other staff (which may or may not be relevant to the question of whether her dismissal was fair or unfair) and has been employed since 1996.

[15] As is often the case where the Commission is deciding an application to extend time there is not sufficient information before the Commission at this stage to form a clear view on the merits or otherwise of Mrs Pagalia’s unfair dismissal remedy application. Consequently the question of the merits of the substantive application is a neutral factor in determining whether or not an extension of time should be granted.

Fairness as between the person and other persons in a similar position

[16] This is not a relevant factor in this matter.

Conclusion

[17] The onus is on the applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided and have found that there was an acceptable reason for the delay in making the application one day late, that being a representative error. This in my view does amount to exceptional circumstances.

[18] Having found that their where exceptional circumstances I also believe this is an appropriate instance to exercise the discretion available to allow a further period for this application to be made. An order will be issued extending the time to make this application to 17 October 2014.

[19] The application will be referred to a Fair Work conciliator and the parties will be advised in due course of the date and time of that conciliation conference.

COMMISSIONER

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