Karen Campbell v Nadic Administration Pty Limited

[2011] FWA 2123

[2011] FWA 2123

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Karen Campbell
v
Nadic Administration Pty Limited
(C2011/3260)

DEPUTY PRESIDENT SAMS SYDNEY, 6 APRIL 2011

Application to deal with contraventions involving dismissal - extension of time - “exceptional circumstances” - jurisdiction of Fair Work Australia - application dismissed.

[1] On 4 February 2011, Ms Karen Campbell (‘the applicant’),filed an application under s 365 of the Fair Work Act 2009 (‘the Act’)alleging contraventions of the Act involving her dismissal by Nadic Insurance Brokers (‘the respondent’) on 30 November, 2010. Pursuant to s 368 of the Act, Fair Work Australia (‘FWA’) conducted a telephone conference to deal with the dispute on 1 March 2011. The applicant and the respondent were unrepresented. During this conference both parties identified and argued their respective positions in respect to the applicant’s dismissal.

[2] For the purposes of this interlocutory decision, it is unnecessary to canvass the merits of the application, as it is clear that the application was lodged outside the 60 day time limit required by s 366(1)(a) of the Act. It follows that if the application is to proceed further, FWA must exercise its discretion to extend the time for the filing of the application, in accordance with the requirements of s 366(2) of the Act. That section is expressed as follows:

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[3] As the application was not resolved at the conclusion of the telephone conference and as the applicant intended to take the matter further in the Federal Magistrates Court or the Federal Court, this step required my signing of a certificate of unsuccessful conciliation, pursuant to s 369 of the Act. Plainly, FWA has no power to issue a certificate under s 369 of the Act unless it has determined that the application is competently before the Tribunal. If FWA refuses to extend the time for the filing of the application, pursuant to s 366(2), then there is only one result - the substantive application must be dismissed.

[4] Given the serious consequences of dismissing this application; namely, that the matter is concluded, I impressed on the applicant the need for her to address the specific requirements of s 366(2) of the Act, in order for FWA to be satisfied that “exceptional circumstances” exist for the application to be accepted out of time. I recall doing so at least twice during the conference and the applicant acknowledged that she understood what was required of her. To further emphasise the matter, I issued the following directions to both parties on 1 March 2011:

Pursuant to s 366(2) of the Fair Work Act 2009, I direct as follows:

1. Ms Karen Campbell (the applicant) is to file in the Tribunal and serve on Nadic Administration Pty Ltd (the respondent) submissions as to why Fair Work Australia should exercise its discretion to extend the time for filing of this application by 4:00pm, 22 March 2011.

2. The respondent is to file in the Tribunal and serve on the applicant submissions in reply by 4:00pm, 29 March 2011.

3. The applicant is to file in the Tribunal and serve on the respondent submissions in reply by 4:00pm, 5 April 2011.

Upon receipt of the submissions, Fair Work Australia will proceed to consider its decision on the jurisdiction issue only.

[5] On 28 March 2011, and after being granted an extension of time for filing her submission, FWA received the applicant’s one paragraph submission. It read:

“Dear Sir,

I refer to my previous request for extra time as there has been confusion regarding the final date of my employment with Nadic Pty Ltd.

As I stated in our conversation, Dallas James told me on the phone, 31st November 2010, that he would reconsider my termination & call me again. I have never had any correspondence from Dallas since that date. My pay-slip stated; paid till 6/12/2010. So sent my application as regarding this date. As mentioned in our phone conference, Dallas had a letter dated 14/12/2010, confirming my termination. Even though I had not received this letter at the time, it does verify that Dallas was reconsidering my employment. He does know I was grossly unfairly dismissed, there is no other reason for the lies himself and Emma Stansbury have stated against me. Hoping to address that issue also.

May you consider my reason for any late application, I would be most grateful.

Kind regards,

Karen Campbell”

[6] The respondent filed and served its reply on 29 March 2011. It read:

“Further to our conversation today, Ms Campbell’s response does not respond to the issues raised and is not in accord with the directions of the court and I respectfully suggest that the matter be dismissed. Looking forward to your advice as soon as possible.

Kind regards,

Dallas James”

[7] The applicant did not reply to the respondent’s application that FWA dismiss her application as was available to her in the third direction. (see para 4).

CONCLUSION

[8] There is a dispute as to when the applicant was dismissed. The applicant claimed it was 6 December 2010 - the day she was paid up to by the respondent when she was provided with pay in lieu of notice. However, elsewhere in her application, she said that she was “sacked the same day” as she had complained about problems at work. There is no doubt that this was the 30 November 2010. She did not return to work, at any time, after this date and a letter confirming her termination of employment, dated 14 December, 2010, was expressed as follows:

“Dear Karen,

This letter serves as confirmation that your last day of employment with our company was the 30th November 2010. Your final payment was made on the 7th December 2010 which included 2 weeks payment in advance as per your contract requirement.

Could you kindly return the keys to our office within 7 days of the date of this letter.

We wish you the best of luck in all your future endeavours.

Yours Sincerely

Dallas James”

In my view, there can be no doubt the applicant was dismissed on the 30th November 2010. Her application was lodged 66 days later and therefore, 6 days out of time.

[9] Given the background to this matter, and the failure of the applicant to properly (or at all) address the specific requirements of s 366(2) of the Act, it is unnecessary for me to discuss the meaning of the expression “exceptional circumstances”, although I would adopt the comments of the Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at par 10 - 15. That said, I apprehend the applicant’s one paragraph submission, asserts that she was expecting the respondent’s CEO, Mr Dallas James, to reconsider her dismissal and she was waiting for his phone call to that effect. There is no objective evidence that this was ever going to happen, or was even a possibility. The applicant merely presumed that as she was paid a notice period up to 6 December 2010, she was either not actually dismissed until then or Mr James would call her during that period.

[10] In my opinion, this submission cannot possibly amount to an “exceptional circumstance”, as comprehended by the statute. In any event, all of the relevant documentary evidence, including in the section where the applicant’s application refers to her being “sacked” on the 30th November 2010 makes it abundantly clear that she had been dismissed on 30 November 2010, and she knew it to be so. At the very least, one might have expected that an application, in some form, would have been filed shortly after the receipt of the letter of 14 December 2010, confirming her dismissal. After all, she identifies no other grounds as to why she waited until the 4 February 2011 before filing this application.

[11] In my view, there are no “exceptional circumstances” which would satisfy FWA that an extension of time should be granted to accept this application out of time. The application must be dismissed. An order giving effect to this finding will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

The applicant (unrepresented)

The respondent (unrepresented)

Hearing details:

2011

Sydney

1 March

Final written submissions:

For the applicant: 5 April 2011

For the respondent: 29 March 2011

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