K Annear v Centaurus Investments Pty Ltd T/A Bayside Day Procedure Centre

[2015] FWC 3994

[2015] FWC 3994 [Note: An appeal pursuant to s.604 (C2015/4563) was lodged against this decision - refer to Full Bench decision dated 9 September 2015 [[2015] FWCFB 5263] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

K Annear
v
Centaurus Investments Pty Ltd T/A Bayside Day Procedure Centre
(U2015/4951)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 15 JUNE 2015

Application for relief from unfair dismissal – extension of time – jurisdictional objection upheld – no exceptional circumstances – application dismissed.

[1] This is an application by Ms K Annear (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged termination of her employment by Centaurus Investments Pty Ltd T/As Bayside Day Procedure Centre (the Respondent).

[2] The application was made on 17 April 2015.

[3] The Applicant’s application (Form F2) identified that the termination date had effect as of 26 March 2015. The Respondent’s response (Form F3) cited the date on which the termination had effect as 27 March 2015 and the respondent supplied a separation certificate to the Applicant on 20 April 2015, stating that the employment ceased on 2 April 2015. A corrected separation certificate identifying the termination date as 26 March 2015 was sent by the Respondent to Centrelink.

[4] When the termination had effect is a question of fact. The Applicant was advised of her termination during the day of 26 March 2015 by Ms L Benett (the Respondent’s CEO) but asked by the Applicant to reconsider her decision. Ms Benett agreed to do so, did so and communicated with the Applicant at 7.00 p.m. on 26 March 2015, confirming to the Applicant that she no longer had a position with the Respondent. I find that the termination had effect on 26 March 2015.

[5] Whilst the separation certificate provided to the Applicant by her employer on 20 April 2015, stated that the termination had effect on 2 April 2015, the termination was communicated to the Applicant by Ms Benett on the evening of 26 March 2015. I am not satisfied that the error in the separation certificate retrospectively altered the date of the termination of employment. Nor am I satisfied that the error in the initial separation certificate affected the Applicant’s understanding of the date the termination had effect, given the initial certificate was not supplied to the Applicant until after she had lodged her application.

[6] I find that the application was made one day beyond the time period prescribed in s.394(2)(a) of the Act and if it is to be accepted requires an extension of the time for lodgement until 18 April 2015, pursuant to s.394(2)(b) by the Fair Work Commission (the Commission) which requires satisfaction that there are exceptional circumstances (s.394(3)) 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.”

The reason for the delay

[7] The Applicant’s explanation for the delay in her written materials related to a delay in providing information in relation to the incomplete application lodged by her (on 17 April 2015) and not to the failure to lodge that incomplete application on time. The delay in lodgement, however, relates to the date of lodgement of the incomplete application – 26 March 2015 – not the date on which the missing information was provided to the Commission in an amended application of 28 April 2015.

[8] No explanation was offered by the Applicant to explain the failure to file the incomplete application by 16 April 2015, as required by s.394(2)(a) of the Act, other than that the Applicant was not the type to cause trouble and she was motivated to make an application in part because of the manner in which she was treated by Ms Benett in respect of the provision of a separation certificate, which came to a head on 17 April 2015.

[9] I am not satisfied that this satisfactorily explains the failure to lodge the application in time nor that the explanation establishes exceptional circumstances for the late lodgement.

[10] The reasons relied on do not support a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[11] The Applicantbecame aware of the termination on 26 March 2015, as confirmed in the telephone call from Ms Benett. This consideration lends no support to a finding of exceptional circumstances.

Any action taken by the person to dispute the dismissal

[12] The Applicant took no action to dispute the dismissal other than to lodge her s.394 application. This consideration does not establish exceptional circumstances.

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

[13] In the context of the one day delay in lodgement, and in the absence of any evidence to support prejudice to the Respondent, I find that there would be no prejudice to the Respondent from the acceptance of the late application. This is a neutral consideration in the circumstances of the current matter.

The merits of the application

[14] There is a factual dispute as to the circumstances relied on by the Respondent to terminate the employment of the Applicant. This conflict could only be resolved on the basis of a full case as to the merits. Without hearing that evidence, I cannot find that the substantive case of the Applicant is devoid of merit. This is a neutral consideration in the circumstances of the current matter.

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

[15] No issue about fairness in relation to other persons had been raised. This is a neutral consideration in the circumstances of the current matter.

Conclusion

[16] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would provide power to and warrant, as a matter of discretion, my granting an exception to the statutory time limit. On that basis, the application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

K Annear with V Skeen on her own behalf.

N Howells-Schramm with M Badov for the Respondent.

Hearing details:

2015.

Melbourne:

June 12.

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