Jolie Hillier v Spastic Centres of South Australia Inc

[2014] FWC 5132

[2014] FWC 5132

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jolie Hillier
v
Spastic Centres of South Australia Inc
(U2014/8313)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 30 JULY 2014

Application for relief from unfair dismissal - extension of time granted.

[1] On 29 July 2014 I advised the parties to this matter that I was satisfied that the time for lodgement of Ms Hillier’s unfair dismissal application should be extended and that, accordingly, the application would be referred for conciliation. These reasons reflect the background and reasons for that decision.

[2] On 14 July 2014 the Australian Municipal, Administrative, Clerical and Services Union (the ASU) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), on behalf of its member, Ms Hillier in relation to the termination of her employment with Spastic Centres of South Australia Inc (SCOSA).

[3] That application advised that Ms Hillier’s dismissal took effect on 20 June 2014. It advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept the application out of time.

“Unfortunately within the ASU, there was an administrative error made regarding the lodgement of the application. This has resulted in a delay of one business day, which we assert causes no prejudice to the employer. We assert that the Commission’s granting of this additional leave to apply is naturally just for the affected worker in the situation, who should not be disadvantaged as a result of this administrative error.” 1

[4] The application was referred to me for consideration. On 14 July 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 on 29 July 2014. Ms Hillier was required to provide a witness statement and a copy of any document relied upon, by 22 July 2014.

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

[6] Ms Hillier provided material to the Fair Work Commission (FWC) and to SCOSA. This consisted of witness statements made out by Ms Hillier and by Ms Purdy, the Director: Industrial & Legal, of the ASU.

[7] The extension of time issue was considered through a telephone conference on 29 July 2014. A sound file record of this conference was kept. Ms Hillier participated in this conference but was represented by Ms Kennett of the ASU. SCOSA was represented by its Senior Manager, People & Culture, Ms Marks.

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

[9] 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.

[10] 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.”

[11] In terms of s.394(2) I am satisfied that Ms Hillier received advice of the termination of her employment on or about 23 June 2014. Her evidence was that:

“On or about 23 June 2014, I received a letter dated 20 June 2014 outlining that I had been terminated from my employment. I was not aware that I had been dismissed until I received the letter on or about 23 June 2014. I contacted the Industrial Officer assisting me immediately upon receipt of the letter and instructed that an unfair dismissal claim be lodged against my employer. I was informed that my assisting Industrial Officer prior to giving her these instructions that she believed I had a strong case for unfair dismissal and the ASU would be willing to support me thought the process.” 2

[12] That letter of termination specified the termination of Ms Hillier’s employment took effect on 20 June 2014. The application was lodged on 14 July 2014. Consequently, if 20 June 2014 is taken as the date upon which the termination of Ms Hillier’s employment took effect, the application was lodged three days outside of the 21 day time limit.

[13] Ms Hillier advised that she was suspended from her employment on 6 June 2014 and contacted the ASU for assistance in this respect on that same day. She, together with an ASU representative, met with SCOSA on 13 and 18 June 2014. On the same day which she received the letter advising of the termination of her employment, she contacted the ASU and instructed that the application should be lodged. Ms Kennett of the ASU advised her that the application would be lodged before Ms Kennett commenced annual leave from 30 June 2014 to 11 July 2014. Ms Hillier contacted Ms Kennett on 14 July 2014. Ms Kennett then became aware that the application had not, in fact, been lodged. Ms Purdy’s statement confirmed that, before commencing her leave, Ms Kennett had provided e-mail advice to other ASU personnel requesting that an unfair dismissal application be lodged on Ms Hillier’s behalf. Ms Purdy’s Statement confirmed that the ASU then arranged for the application to be lodged on that same day.

[14] I am satisfied that Ms Hillier took prompt action to initiate this application and that the delay was due to an administrative failing within the ASU. Whilst that delay is properly characterised as representative error, it is appropriate that I note that representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. 3 Consequently, the actions taken by Ms Hillier are central to the question of whether there is an acceptable reason for the delay. In this respect I have noted that Ms Hillier issued the instruction to pursue the matter on the day she became aware of the termination of her employment. She was assured that the matter would be addressed in accordance with her request. Additionally, she pursued the matter with the ASU soon after the date upon which she was aware that Ms Kennett would return from annual leave. In these respects I am satisfied that the delay was not caused by her actions or her inaction and that the error on the part of the ASU supports an extension of time in these particular circumstances.

[15] On the information before me, I am satisfied that Ms Hillier only became aware of the termination of employment decision some three days after the date that termination of employment took effect. The letter to her was mailed on a Friday and received on the following Monday.

[16] Again, from the information before me it is clear that Ms Hillier challenged the proposed termination of her employment in meetings held before that termination took effect and her subsequent actions after the termination took effect, reflect the same approach

[17] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter but this, of itself, cannot represent a basis for an extension of time.

[18] In terms of the merits of the application, the information before me is contradictory and insufficient to allow a conclusive view on the merits of the application to be formed.

[19] Considerations of fairness relative to persons in similar circumstances to Ms Hillier support an extension of time.

Conclusion

[20] For the reasons I have set out above, I am satisfied that Ms Hillier’s circumstances support an extension of time. I regard those circumstances as exceptional for the purposes of s.394(3). In this respect, the receipt of the termination of employment advice three days after it took effect, and the administrative error which occurred within the ASU office, represent a cumulative circumstance which should be regarded as exceptional. The request for an extension of time is granted and, accordingly, the application will be referred for conciliation. An Order (PR553690) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

A Kennett representing the applicant.

E Marks representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

July 29.

 1   Form F2, para 1.4

 2   Statement of Jolie Kate Hillier, para 5

 3   see for example Clark v Ringwood Private Hospital Print S5279 and Comcare v O’Hearn [1993] 119 ALR 85

Printed by authority of the Commonwealth Government Printer

<Price code C, PR553689>