Josephine Young v RJ Sanderson & Associates Pty Ltd
[2010] FWA 1211
•17 FEBRUARY 2010
[2010] FWA 1211 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
RJ Sanderson & Associates Pty Ltd
(U2009/5009)
COMMISSIONER BISSETT | MELBOURNE, 17 FEBRUARY 2010 |
Extension of time.
[1] This is an application under s.394 of the Fair Work Act 2009 (the Act) for an extension of time within which to lodge an application with Fair Work Australia (FWA) for a remedy for unfair dismissal.
[2] The applicant is Mrs Josephine Young. The respondent employer is RJ Sanderson & Associates Pty Ltd. The applicant commenced her employment with the respondent on 11 July 2006. She was notified of her dismissal, and that dismissal took effect, on 9 October 2010.
[3] The applicant lodged her application under s.394 for a remedy for unfair dismissal on 6 November 2009 – 14 days outside the statutory timeframe for the lodgement of such applications. 1
Legislative Framework
[4] Section 394 of the Act sets out the requirement for lodging an application for remedy from unfair dismissal. Section 394(2) requires that such applications be lodged within 14 days after the dismissal took effect or within such further period as FWA allows under s.394(3).
[5] Section 394(3) provides for FWA to allow a further period for the lodgement of an application.
“394 Application for unfair dismissal remedy
.…(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.”
[6] These factors are exhaustive and, except for paragraph (b), are based on the principles in Brodie-Hans v MTV Publishing Ltd. 2
[7] The existence or otherwise of exceptional circumstances as required by s.394(3) of the Act such that FWA should exercise its discretion to grant an extension of time is informed by a consideration of those factors in paragraphs (a)-(f) above. The extent to which the factors do provide for exceptional circumstances will depend on the particular circumstances of the case.
[8] Section 396 of the Act requires that a decision be made with respect to the extension of time from that prescribed by the Act before considering the merits of the application.
Submission of Applicant
[9] The applicant submitted that, at the time of her termination she understood that she would be paid until the end of November 2009. On receipt of her final pay on 29 October 2009 she realised that she had only been paid until the end of October. Had she known she would not be paid until the end of November she would have lodged her claim within the required 14 days. In addition she only received three weeks pay in lieu of notice instead of the four weeks she was entitled to receive.
[10] The applicant’s husband had sought details from the respondent as to the reason for her dismissal by email on 23 October, followed up by the applicant with the respondent on 2 November 2009.
[11] The applicant submitted that she had been treated less favourably than others who had their employment terminated at the same time.
[12] The applicant was offered book-keeping work by the respondent which she declined because she didn’t really want to work for the respondent.
[13] The applicant didn’t lodge her claim within 14 days as she didn’t really want to sue anyone.
[14] The applicant argued that the request for an extension of time should be granted because: she was not paid until the end of November as she believed she was promised and she was accused of lying about that date; she believed the respondent to say that if there was deceit she should go to the tribunal; and she had been accused of wrong doing even though she had done nothing wrong.
Submission of the Respondent
[15] In opposing the application for an extension of time the respondent submitted that on being advised that the applicant was entitled to a further one week’s pay in lieu of notice this had been rectified.
[16] With respect to the application for the respondent said that there were no exceptional circumstances warranting an extension of time. In addition, the applicant was aware of the reasons for her termination.
[17] The respondent submitted that the applicant was not promised payment to the end of November at the time of her termination. Material supporting this in the form of a statutory declaration from the employee who advised the applicant her employment was to be terminated was tabled 3 and a copy of an email sent from the same employee to the respondent on the day of the applicant’s termination advising that the applicant had agreed to payment until the end of October.4 Further, the applicant had not sought payment until the end of November until 6 November 2009.
[18] The respondent agreed that staff dismissed at the same time as the applicant had varying conditions of release and end dates for their employment.
Are there exceptional circumstances?
[19] The applicant did not seek any additional information with respect to the termination until her husband sought such information by email to the respondent on 23 October 2009, 14 days after the termination took effect, but did not lodge an unfair dismissal claim until 6 November – a further 14 days later and some 8 days after receipt of her final payment which she says did not constitute all of the payment she understood she would receive. There is no evidence that, at the time of her termination, she sought to confirm any particular arrangements surrounding the termination.
[20] The applicant was aware of her termination on the day it took effect. She took no action to dispute her termination until she received her final payment. The dispute over the termination appears to go to the amount of pay she received on termination.
[21] Nothing was put suggesting any prejudice to the employer should the application be granted.
[22] Whilst some general submissions were put to me on the merits of the application (by both the applicant and respondent) it was of such a general and untested nature that I am unable to reach any conclusion with respect to the merits of the application.
[23] There was nothing to suggest that it would be unfair to refuse the application in circumstances where others in similar situation may have been allowed a further period within which to make an application.
Conclusion
[24] In all of the circumstances I am not satisfied that the exceptional circumstances exist which would cause me to exercise my discretion to allow a further period within which to lodge the application.
[25] The application for an extension of time is dismissed.
COMMISSIONER
1 Section 394(2) of the Act.
2 (1995) 67 IR 298.
3 Exhibit R3.
4 Exhibit R2.
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