Jaymie Knight v Western Power

[2021] FWC 6689

[2021] FWC 6689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaymie Knight
v
Western Power
(U2021/10823)

COMMISSIONER WILLIAMS PERTH, 24 DECEMBER 2021

Application for an unfair dismissal remedy

[1] Ms Jaymie Knight (Ms Knight or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Western Power (the Respondent).

[2] Ms Knight was dismissed on 27 October 2021 and her dismissal took effect that day. This application was made on 26 November 2021.

[3] The application has been made more than 21 days after the alleged dismissal took effect.

[4] Section 394(2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out 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] Consequently, the Commission’s staff wrote to the Applicant explaining to her the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[6] In response, by email, on 7 December 2021, the Applicant advised that she did not wish to add anything to the statement she had already made in her application.

[7] The Respondent objects to the Applicant being granted an extension of time and has provided submissions and a witness statement in support of their position.

[8] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

The Applicant’s reason for the delay

[9] In her application, Ms Knight says that after taking the online eligibility quiz it was determined she was a state system employee, and she was referred to the Western Australian Industrial Relations Commission (WAIRC).

[10] She then lodged an application with WAIRC on the 19 November 2021. She explains that on the 23 November 2021 she received the below email.

“Good afternoon,

I confirm receipt of the attached Form 2 – Unfair Dismissal Application, received in the Registry on 19 November 2021.

Within your Form 2 – Unfair Dismissal Application you state that you were covered by a state award or registered industrial agreement. You provided the name as ‘Western Power and CEPU enterprise agreement 2017’. This award is registered with the Fair Work Commission. If you are covered by this agreement then you may be a national/federal system employee. The Western Australian Industrial Relations Commission only has the jurisdiction to deal with unfair dismissal applications of state system employees, and cannot assist those covered by the federal employment system.”

[11] The Applicant explains that after receiving this email she made several phone calls to get all the correct information about the award, her employer, and everything she believed she required to lodge the correct application.

[12] In summary, the reason for the Applicant making the application more than 21 days after her dismissal took effect is that she first mistakenly applied to the WAIRC and only after being advised by the WAIRC of her error did she make this application.

[13] Considering the reasons for the delay in making this application notably the Applicant made her application in the WAIRC on 19 November 2021, which was more than 21 days after her dismissal took effect so even if she had made the application at this time in this Commission it would have been made out of time. No reason has been provided for this delay in making her first application.

[14] Separately, as the Respondent submits, having been notified by the Registry of the WAIRC on 23 November 2021 that she had made her application in the wrong jurisdiction, the Applicant did not make her application in this Commission for a further three days. There is no acceptable reason given for this further delay in making her application.

[15] In this case, the Applicant has not provided an acceptable reason for all of the delay in this instance.

Did the Applicant first become aware of the dismissal after it had taken effect?

[16] The Applicant was made aware of her dismissal at the same time it took effect.

Action taken to dispute dismissal

[17] The Applicant did take other action to dispute her dismissal by making the unfair dismissal application in the WAIRC, however she took this action more than 21 days after her dismissal took effect.

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

[18] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[19] The Respondent terminated the Applicant’s employment after the Applicant tested positive for crystal methamphetamine while at work, which it says amounted to misconduct in breach of the Respondent’s Code of Conduct, Corporate Value ‘Safety First’ and Drug and Alcohol Management Procedure.

[20] The Applicant was employed in the position of Mechanical Tradesperson.

[21] On 23 September 2021 she was subject to a random drug and alcohol test.

[22] The test was positive for crystal methamphetamine at levels above the cut-offs in the Respondent’s policies and procedures.

[23] The Respondent issued the Applicant with a letter setting out allegations regarding the positive drug test and inviting her to respond to the allegations in writing.

[24] Two weeks later, the Applicant provided a written response by email saying she had not knowingly used any illicit substances to cause the positive result.

[25] The Respondent replied with another letter explaining that her response did not provide an adequate explanation and provided her with a further opportunity to respond to the allegations and directed her to attend a show cause meeting.

[26] The Applicant provided a further written response on 25 October 2021. In this response, she explains that at a birthday gathering, unbeknownst to her, a friend of her partner mixed an illicit substance into people’s drinks including the Applicant’s which explains the positive drug test.

[27] On 27 October 2021 the Applicant attended the show cause meeting. The Respondent, after considering her further written response and verbal response in the meeting, formed the view that she had engaged in misconduct which was inconsistent with the continuation of her employment and she was dismissed.

[28] Considering the facts of this matter, the Applicant’s case is very weak and she is unlikely be able to prove that her dismissal was unfair.

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

[29] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[30] 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 by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[31] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and must be dismissed.

[32] An Order [PR737149] to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR737148>