Jodi Heuvel v Caltex T/A Calstores Pty Ltd

[2019] FWC 8007

[2019] FWC 8007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jodi Heuvel
v
Caltex T/A Calstores Pty Ltd
(U2019/10584)

COMMISSIONER PLATT ADELAIDE, 25 NOVEMBER 2019

Application for an unfair dismissal remedy – extension of time – application dismissed.

[1] Ms Jodi Heuvel has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Caltex T/A Calstores Pty Ltd (Caltex) which her form F2 Unfair Dismissal Application advised took effect on 30 August 2019.

[2] The application was lodged on 20 September 2019.

[3] Ms Heuvel’s application did not recognise that it was made beyond 21 days from the date of dismissal.

[4] On 16 October 2019, Caltex lodged a form F3 Employer Response which indicated that the dismissal occurred on 29 August 2019. No jurisdictional objection was raised.

[5] The matter did not resolve through conciliation and was allocated to me.

[6] On 8 November 2019, my Associate corresponded with Ms Heuvel and Caltex and raised the extension of time issue, advising that it would be considered at a telephone hearing on 22 November 2019. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Heuvel was directed to provide a statement concerning the extension of time and any documents to be relied upon by 15 November 2019. Caltex was invited to file any material in reply by 20 November 2019.

[7] Ms Heuvel did not provide any submission despite follow up.

[8] Caltex provided a submission which is summarised as follows:

•  Ms Heuvel was advised of her dismissal during a show cause meeting conducted on 29 August 2019.

•  A copy of the written termination advice was provided which states that Ms Heuvel’s employment ‘has been terminated effective today, 29 August 2019….’ Notice was paid in lieu.

•  Caltex contended that no exceptional circumstances existed.

[9] A hearing was conducted by way of telephone conference on 22 November 2019. A sound file record of the telephone conference was kept. Ms Heuvel did not attend the hearing. My Associate left a message on the telephone number provided advising that the hearing would commence in her absence, should she not attend. Ms Carmen Wong appeared with Ms Victoria Perry from Caltex. The hearing commenced at 10.40am, Ms Heuvel did not appear.

Consideration

[10] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(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.”

[11] I find that Ms Heuvel was dismissed on 29 August 2019.

[12] I find that the unfair dismissal application by Ms Heuvel was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[13] I have considered and applied the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd.¹

[14] I make the following observations:

•  Ms Heuvel has not made a formal request for an extension of time.

•  Ms Heuvel has failed to provide any explanation as to the reasons for delay in filing her application.

[15] It appears that Ms Heuvel was aware of the dismissal on the day that it occurred.

[16] There is no evidence that Ms Heuvel took any other steps to contest the dismissal.

[17] There is no submission that Caltex has suffered prejudice.

[18] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

[19] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[20] For the reasons I have set out above, I am not satisfied that Ms Heuvel’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order² reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

No appearance on behalf the Applicant.

Ms C Wong on behalf of the Respondent.

Hearing (Conference) details:

2019.

Adelaide:

November 22.

Printed by authority of the Commonwealth Government Printer

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1 [2011] FWAFB 975

2 PR714570