Katie Perry v National Credit Management Ltd

[2014] FWC 2403

[2014] FWC 2403

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Katie Perry
v
National Credit Management Ltd
(C2014/3359)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 10 APRIL 2014

Application to deal with contraventions involving dismissal - extension of time - application refused.

[1] In the course of a hearing on 9 April 2014, I declined to extend the time for lodgement of an application made by Ms Perry pursuant to s.365 of the Fair Work Act 2009 (the FW Act), in relation to the termination of her employment with National Credit Management Ltd (National Credit). These reasons for decision detail the basis upon which I reached that conclusion.

[2] Ms Perry’s application was lodged with the Fair Work Commission (FWC) on 7 March 2014. An Employer’s Response (Form F8A) was received by the FWC on 17 March 2014. In this response, National Credit objected to the application proceeding further on the basis that it was lodged outside of the 21 day time limit. Notwithstanding that the National Credit objection referred to s.566 of the FW Act, I have taken it that this is a reference to s.366.

[3] Section 366 states:

“Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC 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.”

[4] On 18 March 2014, I issued directions in which I confirmed to the parties that I would consider the extension of time issue consistent with s.366 at a hearing in Adelaide on 9 April 2014. I directed Ms Perry to file in the Commission and serve on National Credit, by close of business 2 April 2014:

• a written outline of her position with respect to whether the application was lodged within time, and, if not, the basis that any extension of time;
• witness statements for any witnesses (including Ms Perry) to be called relative to the extension of time issue; and
• a copy of any document to be relied upon relevant to the extension of time issue.

[5] An explanation of those terms was attached to my directions. National Credit was advised that whilst there was no impediment to it presenting evidence at this hearing, there was no requirement to provide this in written form.

[6] Finally, these directions stated:

“Compliance with these directions is mandatory and a failure to do so may disadvantage the party concerned.”

[7] Contact details for my office were included in the directions.

[8] On 20 March 2014, Ms Perry forwarded an e-mail in the following terms:

“In regards to Notice of Listing - C2014/3359 - Perry v National Credit Management Ltd, I Katie Perry of 62 Muriel Drive, Pooraka SA 5095 will not be able to attend the meeting on April 9th 2014 in person as I am relocating interstate for employment and this is not physically possible for me to attend.

“I will only be able to communicate via email or conference calls.

“Can someone please advise me of the next steps in regards to this issue.”

[9] My Associate responded in the following terms:

“Thank you for your email dated 20 March 2014. I have referred your email to the Senior Deputy President.

“The Senior Deputy President has asked that I remind you of all of the requirements set out in the directions of 18 March 2014. He has agreed that you can appear at the 9 April 2014 hearing by videolink, subject to availability of the equipment.

“Accordingly, please provide immediate advice of your location at that time so that we can arrange this video link.”

[10] Ms Perry provided written submissions on 31 March 2014. I will address those submissions shortly. However, I note that, at the conclusion of those submissions Ms Perry stated:

“I am in-between South Australia and New South Wales attending interviews looking for employment and seeking residence in NSW therefore I am physically unavailable to attend the meeting on April 9th 2014, I am available by email only at this stage until I have a dedicated LAN line at my new place of residence.”

[11] On 8 April 2014, my Associate forwarded an e-mail to Ms Perry advising that she had not served her submissions on National Credit. Ms Perry was asked to do this as a matter of urgency but, in the meantime, the material which Ms Perry had provided to the Commission was forwarded to National Credit.

[12] Also on 8 April 2014, my Associate left a voicemail message for Ms Perry requesting that she return her call as a matter of urgency regarding the hearing on the following day. My Associate forwarded a text message to Ms Perry on that same afternoon, in which she confirmed that FWC had not been advised of the location for the hearing, and asked Ms Perry to respond as soon as possible.

[13] Just prior to the hearing of this matter on 9 April 2014, Ms Perry responded by e-mail in the following terms:

“As per my last documentation sent, I am unavailable to be contacted via a secured LAN line as I am traveling in-between states looking for employment opportunities. I wish to be contacted via email only as I can keep a copy of all documents and correspondence.”

[14] I am satisfied that Ms Perry was given substantial notice of, and opportunity to attend and participate in the hearing on 9 April 2014. As an applicant, she has an obligation to pursue her application. She has chosen not to do that. In these circumstances, I considered the extension of time issue on the material before me. In this respect I have taken into account the information provided on the application and Ms Perry’s written submissions of 31 March 2014.

[15] I note that Ms Bastian appeared for National Credit at the hearing on 9 April 2014.

[16] In her submissions, Ms Perry states:

“My employment was terminated from National Credit Management Limited on Thursday 13th February 2014. My F8 claim was lodged on 06/03/2014 by registered mail 515026985014. My application was lodged on the 21st day from the date of my termination. As per the terms and conditions of lodgement, the claim must be lodged 21 days after termination, which I have done correctly. The application was received by Fair Work Australia on 07/03/2014, this is not the lodgement date, this is the date that FWC received the paperwork.”

[17] I have concluded that Ms Perry’s application was lodged outside of the 21 day time limit. Lodgement in this respect must mean the provision, to FWC of the application. It cannot mean the date upon which an application was mailed to FWC.

[18] Accordingly, I have considered whether an extension of time should be granted.

[19] Ms Perry has provided no reason for the delay in lodging the application. She has provided no indication of any action taken to otherwise contest her dismissal. I have concluded that extending the time for lodgement of the application would, of itself, prejudice National Credit. Ms Perry’s submissions do not establish a sustainable case on the merits. She concedes that her performance did not meet the targets set for her. She does not establish a link between an asserted question about her marital status and the termination of her employment and I am not satisfied that her concerns about the training arrangements relate to the general protections provisions of the FW Act. Issues of fairness between Ms Perry and applicants in similar positions mitigate against the granting of an extension of time.

Conclusions

[20] Having considered these factors consistent with s.366(2), I am not satisfied that Ms Perry’s circumstances are exceptional, or that they represent any sound basis for an extension of time limit specified in s.366. The extension of time request is refused and the application must be dismissed accordingly. An Order (PR549565) to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

Vicki Bastian representing the respondent.

Hearing details:

2014.

Adelaide:

April 9.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR549533>