Jacalyn Jayne Jones v Simon George & Sons Pty Ltd

[2010] FWA 8928

[2010] FWA 8928

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jacalyn Jayne Jones
v
Simon George & Sons Pty Ltd
(U2010/11911)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 23 NOVEMBER 2010

Termination of employment - extension of time to file application.

[1] On 26 August 2010, Ms Jacalyn Jones (“the Applicant”) lodged an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking a remedy in relation to her alleged unfair dismissal. Her former employer is Simon George & Sons Pty Ltd (“the Respondent”).

[2] The Respondent, however, contends that the application is beyond the jurisdiction of Fair Work Australia (“FWA”) for reason the application was not lodged within the time frame stipulated at s.394(2)(a) of the Act. Section 394(2) of the Act reads as follows:

394 Application for unfair dismissal remedy

[...]

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

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

[3] The Applicant and the Respondent have filed written submissions in relation to the considerations that might bear on FWA’s discretion to allow the application under s.394(2)(b) of the Act. Both the Applicant and the Respondent have asked that I determine whether to allow the application without recourse to a hearing. They have asked that I rely on the materials before me for the purposes of reaching my decision. Where there are disputed facts or issues of credit arising, I would not ordinarily acquiesce to such a request. But as I make clear below, at paragraph 24, the circumstances of this application are different as I am able to rely exclusively upon the Applicant's materials for purposes of the relevant determination.

[4] It is uncontested that the Applicant was dismissed from her employment on 2 June 2010 and that the dismissal took affect at that time.

[5] In ordinary circumstances, the Applicant’s application should have been lodged by 16 June 2010. The Application was not lodged until 26 August 2010, approximately 71 days after the date by which the application should have been lodged.

[6] The Act sets out the statutory context within which FWA should exercise its discretion to allow a late application. Section 394(3) of the Act reads as follows:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

[7] The reasons put to me for the delay are as follows.

[8] Having been dismissed on 2 June 2010, the Applicant wrote to her former employer to discuss her concerns. It is said her employer contacted her on 8 June 2010 in response to her communication and there then ensued a conversation in which:

• the Applicant raised concerns about the way in which the Respondent’s business was operated;



• the Applicant raised concerns about her dismissal;



• the Applicant stated she had seven days to think about what action she might take;



• the Respondent indicated his belief the Applicant had been ‘bad mouthing’ him, his family and his business and that the evidence he had in that regard might be used in defamation proceedings in the future; and



• that the Applicant should act carefully in such circumstances.

[9] On 14 June 2010, the Applicant is said to have contacted the Respondent once again, this time seeking written advice as to the reason for her dismissal. Later that day the Respondent is said to have contacted the Applicant and explained that the Applicant had one of two options before her. The options were:

• Be provided with a written reference and a separation certificate stating the termination was for a shortage of work; or



• The “real reason” would be provided.

[10] It is submitted that if the second option was chosen the Respondent would proceed with defamation proceedings against the Applicant and “advise prospective employers” accordingly.

[11] The Applicant elected for the first option.

[12] The Applicant in this matter acknowledges that she was aware of the statutory obligation to lodge an application within 14 days of the dismissal taking effect.

[13] The reason for the delay is that the Applicant was said to have been daunted by the Respondent’s asserted position.

[14] It is said that the separation certificate was issued after Wednesday 16 June 2010, which suggests that the Respondent intentionally delayed issuing the certificate in order for the 14 days time limit to expire. I note that the immediately prior conversation in which the content of the certificate as raised was Monday 14 June 2010, only two days prior to the expiry of the 14 day period.

[15] It is also put to me in the Applicant's materials that the Applicant utilised a representative to make further representations on her behalf to the Respondent on 30 June 2010 and 27 July 2010 in order to seek a wider resolution of the issues in contest. These efforts by a third party did not advance the matter further.

[16] The Applicant did not file an application under s.394 of the Act for a period of a further 30 days or so after the last communication with the former employer. In any event, the Applicant did not file for at least 57 days after such time that representations had begun to be made on her behalf by a third party (which appears to have been a management consultant).

[17] Even if I accept that the Applicant had been daunted by her former employer’s disposition, the Applicant was represented from a date around 30 June 2010 (and presumably earlier than that) yet no application under s.394 of the Act was lodged at or even shortly after that time. The application was not to be lodged until 26 August 2010.

[18] The application was not lodged within the statutory period by the Applicant’s representative or by the Applicant herself, moreover, despite the Applicant’s awareness of the statutory deadline.

[19] It appears on the materials before me that there is no issue relevant to s.394(3)(b) of the Act, as I have said above.

[20] In relation to s.394(3)(c) of the Act, I note that the Applicant approached her former employer twice shortly after her dismissal seeking a means of resolving the issues surrounding her dismissal. To this extent, the Applicant's former employer was aware that she was disposed to contest the matter.

[21] In relation to s.394(3)(d) of the Act, I presume no prejudice arises in relation to the Respondent if I were to allow the application, other than the ordinary inconveniences of responding to an application for a remedy.

[22] In relation to s.394(3)(e) of the Act I indicate that I have not heard this matter nor had the benefit of considering the evidence in relation to the substantive matter. Consequently, I can only find that the application, on its face, must not be without merit.

[23] In relation to s.394(3)(f) of the Act there are no issues agitated by either side that take me to any similar circumstances or like situations.

[24] Taking into account all the circumstances of the matter, I can discern no exceptional circumstances that account for the delay in lodging the application (for the purposes of s.394(3) of the Act). The Applicant was aware of the statutory deadline and despite claims to having been daunted by her former employer had access to representation, there was still a long delay until the application was lodged. There are no explanations for the delay between 30 June 2010 and the date of lodgement in 26 August 2010 (beyond efforts by the representative to resolve the matter by other means up until or shortly after 27 July 2010). Nothing else put to me in the Applicant's submissions, when balanced with these considerations, persuades me otherwise.

[25] The application, therefore, cannot be allowed.

[26] I make clear that in reaching this conclusion I have only relied upon the materials filed by the Applicant’s representative. For purposes of the public record I also observe that the Respondent challenged claims made about its conduct and that it threatened or otherwise acted inappropriately in its dealings with the Applicant.

[27] That said, on the basis of the above decision and findings, I dismiss the application under s.394 of the Act on ground that it is outside FWA’s jurisdiction for reason of non-compliance with s.394(2) of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR504129>