Kimberlee Maree Hughes v Corporate Travel Management
[2010] FWA 3977
•7 JUNE 2010
[2010] FWA 3977 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
Kimberlee Maree Hughes
v
Corporate Travel Management
(U2010/6466)
COMMISSIONER RAFFAELLI | SYDNEY, 7 JUNE 2010 |
Termination of employment, extension of time.
[1] Section 643(14) of the Workplace Relations Act 1996 (the Act) provides that an application under section 643 must be lodged within 21 days after the day on which termination took effect. It also says:
“OR within such period as the Commission allows on an application made during or after those 21 days.”
[2] Here Kimberlee Maree Hughes (the Applicant) did not lodge the application within 21 days of his/her termination by Corporate Travel Management (the Respondent). Her termination occurred on19 December 2008. Her application was lodged on 22 February 2010.
[3] On 12 April 2010 I invited the Applicant to provide reasons in writing as to why the lodgement time should be extended. I also invited the Respondent to provide its response. I do not propose to hold a hearing and have decided to deal with the matter on the basis of what is before me.
[4] The onus in establishing that such time should be extended lies on the applicant. It is the applicant’s matter and it is the applicant that has failed to act in the manner prescribed in the Act.
[5] Within the relevant part of the Act a note appears referring to principles enunciated in Brodie Hanns v MTV Publishing [1995 67 IR 298.]
[6] I take due regard to those principles. Those principles are as follows:
“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. (5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[7] I now turn to those principles.
Acceptable explanation for the delay
[8] In her written submissions of 24 April 2010, the Applicant indicated that while she had been made redundant in December 2008, when she was 4 months pregnant, she had then entered into a new contract of employment with the Respondent working on a part-time basis. This was followed by her being hospitalised with appendicitis (she was 24 weeks pregnant by then) and being largely immobilised for 4-6 weeks after. She also developed gestational diabetes and was required to have weekly tests for her unborn baby for the 2 months before giving birth.
[9] After the birth of her baby, she had difficulty in breastfeeding, and on ceasing breastfeeding, the baby suffered an allergy including eczema. This occurred over several months. It was not until February 2010, that she was able to see an allergy specialist who discovered that the child was allergic to almost all food. According to the Applicant throughout this period she was unable to do anything other than deal with her pregnancy and the baby’s health.
[10] The respondent’s submission of 30 April 2010 did not address the issue of the explanation of the delay in filing.
[11] I find that the applicant had an acceptable explanation for the lengthy delay in filing this application.
Action taken by employee to contest the termination
[12] I accept the submissions of the Respondent that as far as they were concerned the Applicant had accepted her redundancy and then was happy to work for some time on a part-time basis. The application made in February 2010 came out of the blue.
Prejudice to respondent
[13] The Respondent did not make submissions about this consideration and therefore I am unable to find any prejudice arising from the granting of an extension of time.
Merits of the application
[14] Both the Applicant and the Respondent referred to the merits or otherwise of the application. In the absence of any evidence in a fully argued case I am unable to determine the matter. However, I do find that the Applicant’s case can not be said to be without merit.
Fairness as between the applicant and other persons in a like position
[15] This is not a relevant consideration in this matter.
[16] Having duly considered all the matters put to me by both parties in light of the principle enunciated in the Brodie-Hanns decision, I am prepared to exercise my discretion so as to allow the filing of the application on the day it was filed.
[17] The matter will now be listed for conciliation.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR997462>
0
0
0