Jackie Richards v Community Support Incorporated

[2014] FWC 3742

[2014] FWC 3742

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jackie Richards
v
Community Support Incorporated
(U2014/6417)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 JUNE 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 4 June 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 11 April 2014 Ms Richards lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief in relation to the termination of her employment with Community Support Incorporated T/A Community Support Inc (CSI). The application advised that Ms Richards sought to be represented by Mr Shipton of the South East Disability Advocacy Service.

[3] In that application, Ms Richards advised that her dismissal took effect on 11 February 2014. She advised that the Fair Work Commission (FWC) should take into account the following information in considering whether to accept her application out of time.

“Was advised prior to take this complain to the fair work ombudsman but have been told the complain would do better within this jurisdiction the claim with the ombudsman is no longer active”  1 (sic)

[4] The application was referred to me for consideration. On 6 May 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference, initially listed on 26 May 2014, but relisted to 4 June 2014 at the request of the applicant’s representative. Ms Richards was required to provide a witness statement and a copy of any document relied upon, by 19 May 2014.

[5] The Employer’s Response (Form F3) to the application confirmed that CSI objected to an extension of time.

[6] On 15 May 2014 Mr Shipton provided the following advice:

“As per your request prior to the teleconference on the June 4, I wish to submit an explication as to why this application is late and why SEDAS is requesting a review of this application for exemption for a late application waiver. When the client was dismissed I referred the client to the South East Community Legal Service (SECLS) and we were advised by them to make an application to the Fairwork Ombudsman, the legal service did not offer to do this and felt it was within SEDAS’s ability as an advocate to do this. I have made these types of applications before but not with the complexities of jurisdiction this case has. I was only wanting to offer my client an avenue to voice her objections to her dismissal, also to challenge the allegations and requests made by her former employer. The ombudsman then informed me during some phone calls about the case that in their opinion this matter might be better served by the unfair dismissal laws and the Fairwork commission, by this time of course the complaint was outside of the 21 days for submission and thus we submitted the application asking for a waiver of this fact.

I hope this is sufficient explication of the reason for a late application

David Shipton

Individual Advocate - MTG and South East”

[7] No further information was provided by Ms Richards.

[8] The extension of time issue was considered through a telephone conference on 4 June 2014. A sound file record of this conference was kept. Ms Richards participated in this conference with Mr Shipton as her unpaid agent. CSI was represented by Mr Spargo, of counsel pursuant to a grant of permission made under s.596(2)(a) of the FW Act. I note that this was agreed with the parties.

[9] Shortly before this conference, written submissions were received from CSI, together with a statement made out by Ms Anderson, the CSI Human Resources Manager.

[10] I have considered the extension of time issue on all of the material before me.

[11] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[12] Section 394 states:

“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.”

[13] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged some 37 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Ms Richards’ circumstances can be regarded as exceptional for the purposes of this subsection.

[14] Ms Richards was employed by CSI as a support worker in the Mount Gambier region. There is no submission that Ms Richards has any form of disability. The information Ms Richards has provided does not adequately explain why the application could not have been lodged within time. I have concluded that Ms Richards relied heavily on Mr Shipton as the source of advice and assistance to her. Some time after the termination of her employment, Ms Richards and Mr Shipton attended a local community legal centre and obtained advice about taking action to defend her position given the CSI contention that Ms Richards owed CSI money. I have accepted that Mr Shipton, acting on Ms Richard’s behalf then arranged for the lodgement of an application made to the Fair Work Ombudsman. At some time in March 2014 Mr Shipton and Ms Richards decided that, having spoken with the Fair Work Ombudsman, to pursue an unfair dismissal application. I have further concluded that Ms Richards largely left the matter in Mr Shipton's hands. In this respect, I am not satisfied that Ms Richards took steps to pursue an unfair dismissal application other than to rely on Mr Shipton. Whilst there may be an element of representative error involved in this matter I am unable to characterise the delay on that basis. It seems to me that the fundamental reason for the delay related to Ms Richards’ pursuit of an action directed at avoiding the need to repay any money to CSI and to her lack of knowledge of the unfair dismissal remedy. Ms Richards simply has not explained what she did to pursue an application of this nature in a timely manner. Accordingly, I am not satisfied that Ms Richards has established to me a satisfactory reason for the delay.

[15] On the information provided in Ms Richards’ application, I am satisfied that she was made aware of the termination of employment decision on 11 February 2014 which I have taken as the date that termination of employment took effect.

[16] From the information provided to me it is clear that Ms Richards challenged the employer position that she had been overpaid and was consequently required to repay monies but I am not satisfied that, other than through the late lodgement of this application, she took any action to dispute the termination of her employment.

[17] The granting of an extension of time would prejudice the respondent in this matter. This is because the extension of time would itself prejudice the employer, but I also consider the duration of the delay to be a relevant factor.

[18] In terms of the merits of the application, the information before me does not allow a definitive conclusion. In considering the merits of the application I have not taken into account the allegations that Ms Richards borrowed money from a client and I have noted that Ms Richards disputes other allegations about the quantum of wages claimed and dates upon which CSI assert that Ms Richards falsely claimed wages. Notwithstanding this, on the information provided by CSI it appears to me that Ms Richards’ behaviour is likely to constitute a valid reason for the termination of her employment. Further, it appears to me that the process followed by CSI which resulted in the termination of Ms Richards’ employment was appropriate. Consequently, if the evidence established the CSI contentions, I think it unlikely that Ms Richards’ application would be successful on the merits.

[19] Considerations of fairness relative to persons in similar circumstances to Ms Richards do not support an extension of time.

Conclusion

[20] For the reasons I have set out above, Ms Richards’ circumstances do not support an extension of time. Even if I disregarded my preliminary conclusions about the merits of the application Ms Richards’ circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR551488) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

D Shipton representing the applicant.

W Spargo ofcounsel for the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

June 4.

 1   Form F2, para 1.4

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<Price code C, PR551487>