Kareen Pillar v Shire of Derby/West Kimberley

[2014] FWC 2268

[2014] FWC 2268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kareen Pillar
v
Shire of Derby/West Kimberley
(U2014/4246)

COMMISSIONER WILLIAMS PERTH, 9 APRIL 2014

Termination of employment - extension of time.

[1] Ms Kareen Pillar, the applicant in this matter has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is the Shire of Derby/West Kimberly.

[2] The applicant was dismissed during a meeting on 10 January 2014. Her dismissal was confirmed by a follow-up letter from her employer dated 14 January 2014 which she received on 20 January 2014. The application was made to the Fair Work Commission (the Commission) on 3 February 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 Commission to allow 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 section 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 the applicant regarding her application that the Commission allow a further period for her application to be made.

Are there are exceptional circumstances?

The reason for the delay

[6] The applicant explains that she was distressed about the way she was dismissed.

[7] The applicant explains that after being dismissed she attended in total eight appointments with doctors and various specialists including going to Broome for a CAT scan.

[8] The applicant has provided a letter from the support person she had with her when she attended the dismissal meeting on 10 January 2014, a Mr Peter Edward.

[9] As explained in the applicant’s submissions and as confirmed in Mr Edward’s letter at that meeting on Friday, 10 January 2014 the respondent’s Acting Chief Executive Officer explained that he had decided to terminate the applicant’s employment. The termination of employment letter makes it plain that the termination was effective as of that date.

[10] At this meeting the respondent’s officers advised that if she attended an appointment at the Derby Aboriginal Health Service the respondent would not require the applicant, whom had been employed less than two years, to repay various costs the respondent had incurred in engaging her. The respondent also offered to pay relocation costs for the applicant up to $10 000 if the applicant provided three quotes to the respondent within 14 days. At that meeting the applicant agreed to do these things.

[11] The applicant says that she contacted 17 removal companies and received two quotes for removal of her possessions to South Australia and was told by the other 15 companies that they did not service Derby.

[12] The applicant says she felt overwhelmed with everything that was happening and tried to fill out the application many times.

[13] The applicant has provided some information about medication she was using around this time.

[14] The onus is on the applicant in a manner such as this to provide sufficient information to the Commission to explain all of the delay in making this application.

[15] Employees having been dismissed will commonly be distressed and this perhaps unfortunately does not amount to an acceptable reason for delay in making an application from unfair dismissal remedy.

[16] The applicant’s suggestion that she was so unwell due to ill health that she was unable to make this application on time is contradicted by the fact that she says during this period she had been able to contact 17 removal companies and receive quotes from two of them. Further the applicant’s decision to attend medical appointments so as to obtain the financial benefit of the respondent not requiring her to repay costs it had incurred relocating her to Derby was a choice the applicant made to commit time and energy to this instead of making this application within the 21 day time limit.

[17] The reasons for the delay as submitted by the applicant do not amount to acceptable reasons for all of the delay in this case.

Any action taken by the person to dispute the dismissal

[18] The applicant has not taken any other actions to dispute her dismissal.

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

[19] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[20] The reasons for the applicant’s dismissal are explained in the respondent’s letter of termination. Clearly the applicant contests many of these. In a preliminary matter such as this the Commission is limited to determining whether a further period will be allowed to make the application which does not involve the Commission embarking upon a full consideration of the relative merits of the applicant’s arguments versus the respondent’s arguments as to the fairness of her dismissal.

[21] Given the limited information before the Commission the merits of the substantive application are a neutral factor for the purposes of the extension of time application.

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

[22] This is not a relevant factor in this case.

Conclusion

[23] 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.

[24] I have considered the information provided and the submissions from the applicant and in this case no acceptable reason for all of the delay has been advanced and none of the other factors to be taken into account support a finding by the Commission that there where exceptional circumstances in this case.

[25] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and is dismissed.

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

COMMISSIONER

Final written submissions:

Applicant, 1 April 2014

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