Julie Steele v P.R. Hepple & Sons Pty Ltd T/A Avon Valley Beef

[2014] FWC 7147

[2014] FWC 7147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Steele
v
P.R. Hepple & Sons Pty Ltd T/A Avon Valley Beef
(U2014/11305)

COMMISSIONER WILLIAMS PERTH, 16 OCTOBER 2014

Termination of employment - extension of time.

[1] An application was made by Ms Julie Anne Steele (Ms Steele or the applicant) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is P.R. Hepple & Sons Pty Ltd T/A Avon Valley Beef (the respondent).

[2] Ms Steele was dismissed on 8 July 2014. The application was made on 30 July 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act 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] Submissions have been provided by both parties regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] In her application Ms Steele explains the reason the application was not made within 21 days of her being dismissed was that she was not aware she could make such an application as a casual employee.

[7] Ms Steele further submits that her manager contributed to this belief by telling her she “wouldn’t have a leg to stand on”after Ms Steele advised she is considering making an unfair dismissal application and it was only when the applicant was doing research for a family member who had been made redundant that she became aware she was able to make this application.

[8] The applicant then says that after having realised she was eligible to make an unfair dismissal application she was not able to access the internet or a computer for a time and that she relied on the resources at her local library which is only open on certain days.

[9] The respondent submits given an individual’s ability to access to information and technology is relatively easy the applicant could have ascertained her rights in the 21 days subsequently to her dismissal and that simply not being aware of her rights does not amount to exceptional circumstances.

[10] Considering Ms Steele’s explanation for the delay in making this application it is well-established in previous decisions of this Commission that the fact and employee is unaware they are able to make an application for unfair dismissal or is unaware there is a 21 day time limit within which to make that application is not an acceptable reason for the delay in making their application. The law generally holds that being unaware of our legal rights or obligations is not an excuse.

[11] On Ms Steele’s own account of the events she was clearly capable of accessing information regarding workplace rights and had done so for a family member. Therefore I am not satisfied this amounts to an acceptable reason for the delay.

[12] Ms Steele’s explanation that she was not able to access the internet or a computer because her local library is only open on certain days is also not, in my view, an acceptable reason for the delay. There are other ways in which Ms Steele could have lodged an unfair dismissal application with the Commission, including in person or by post, and the choice to wait for the local library to open in order to lodge an application electronically was the applicant’s decision.

[13] These explanations for the delay in making this application when viewed independently or together do not, in my view, amount to an acceptable reason for the delay in this instance.

Any action taken by the person to dispute the dismissal

[14] The applicant at the time she was notified of the dismissal says she indicated to her manager that she was considering making an unfair dismissal application but has not otherwise sought to dispute her dismissal.

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

[15] Given the delay is one day it is highly unlikely that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[16] There is limited information regarding the merits of Ms Steele’s application and therefore the question of merit is a neutral factor for the determination of the extension of time question.

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

[17] This is not a relevant factor in this matter.

Conclusion

[18] 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 submissions and information provided by both parties. In this case there is no acceptable reason for the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[19] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[20] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 16 September 2014 and 30 September 2014

Respondent, 17 September 2014

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