Krystal De La Rue v The Better Image Group International Pty Ltd T/A the Better Image Personnel Pty Ltd
[2011] FWA 5453
•23 AUGUST 2011
[2011] FWA 5453 |
|
DECISION |
Fair Work Act 2009
s.773—Termination of employment
Krystal De La Rue
v
The Better Image Group International Pty Ltd T/A The Better Image Personnel Pty Ltd
(C2011/4395)
COMMISSIONER GOOLEY | MELBOURNE, 23 AUGUST 2011 |
Extension of time application.
The following decision was issued in transcript on 3 August 2011.
[1] On 18 May 2011 Ms Krystal De La Rue (“the Applicant”) made an application for an unlawful dismissal remedy pursuant to section 773 of the Fair Work Act 2009 (“the FW Act”).
[2] The Applicant was employed by The Better Image Group International Pty Ltd and her employment ended on 18 March 2011. The application was therefore not made within 60 days of the date of the dismissal.
[3] A conciliation conference was held on 24 June 2011. At that conference two jurisdictional objections were raised with the Applicant.
[4] The Applicant was advised that her application was out of time and she was advised that as she was a national system employee she should have made an application pursuant to section 365 of the FW Act.
[5] On 5 July 2011 the Applicant advised that she wished to lodge an application for an extension of time and an application to amend her section 773 application.
[6] On 6 July 2011 I advised the parties that the matter would be listed for hearing to hear the application for an extension of time and the application to amend.
[7] On 12 July 2011 the Applicant filed an application for leave to file a section 365 application and on 3 August 2011 the Applicant filed an amended section 365 application.
[8] The Applicant contends that she was terminated in contravention of section 352 of the FW Act.
[9] Section 366 of the FW Act provides as follows:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(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.”
(a) The reason for the delay
[10] The reasons for the delay in lodging the section 365 application are twofold. The first involves the explanation of why the Applicant lodged her section 773 application and her reasons for that application being one day late.
[11] The Applicant gave evidence that she was unrepresented at the time she made her application. She was however less than frank with the Tribunal as it became apparent in cross examination that she sought advice from her step mother who is a legal practitioner who assisted her with her application.
[12] Be that as it may I accept that the Applicant erred in filing a section 773 application instead of a section 365 application. I endorse the views expressed by Commissioner Raffaelli in Trudgett v Training Aids Australia Pty Lt.d 1 It is unsurprising, given the creation of separate streams for general protection and unlawful terminations and the position of section 723 in a separate part of the FW Act to section 773, that the Applicant was unaware that section 773 did not apply to her situation.
[13] I also accept the explanation provided by the Applicant as to the reasons for her delay in making the section 773 application. While a miscalculation of the days is not an exceptional circumstance, the Applicant’s illnesses and the impact of her treatment, which I do not detail in this decision but are set out in her witness statement, do explain the reasons for her failure to lodge her original application on time.
[14] The Applicant engaged legal representatives on 13 June 2011 who did not become aware of either the need for an extension of time nor the lodgement of the incorrect application until 24 June 2011. I accept that to the extent that the Applicant’s solicitors did not identify the errors in the application, this constitutes representational error for which the Applicant should not be held responsible.
(b) Any action taken by the person to dispute the dismissal
[15] The evidence established that the Applicant did not dispute her dismissal at the time apart from asking if her illness was a reason for the termination of her employment.
(c) Prejudice to the employer (including prejudice caused by the delay)
[16] The Respondent submitted that it would be prejudiced by the need to have to defend proceedings including the disruption to its business. No other prejudice was claimed.
(d) The merits of the application
[17] The Respondent submitted that the Applicant’s case was bound to fail as she was not temporarily absent from work within the meaning of regulation 3.01 of the Fair Work Regulations 2009 as the Applicant had failed to provide a medical certificate for her last day of absence until August 2010.
[18] The Applicant contended that there was no dispute that the Applicant had provided medical certificates for the other days she was absent from work and therefore if one of the reasons she was terminated was because she was absent on these other days, this was sufficient for her to have an arguable case that she was temporarily absent from work. Further she submitted that she was not provided with a reasonable opportunity to provide her final medical certificate because her employment was terminated.
[19] The Respondent submitted that even if the Applicant was temporarily absent this was not one of the reasons her employment was terminated.
[20] I accept that if there was evidence to establish that the Applicant was not temporarily absent from work within the meaning of regulation 3.01 that this would weigh heavily against the granting of an extension of time. However, in the circumstances I do not consider that there is sufficient evidence before me to conclude that there is no basis for the Applicant’s claim.
(e) Fairness as between the person and other persons in a like position
[21] No submissions were made on this matter.
Conclusion
[22] I have therefore concluded that there are exceptional circumstances which warrant an extension of time. A conference has already been conducted in this matter. The Applicant has advised that it considers a further conference would be useful. The Respondent’s solicitor had advised that he will need to get instructions from the Respondent. Unless the Respondent advises my chambers by 4pm on 23 August 2011 that they consider a further conference would be useful I will issue a certificate in this matter.
COMMISSIONER
Appearances:
J McKenna of Counsel for the Applicant
C Farinaccio for the Respondent
Hearing details:
2011.
Melbourne.
August 16.
1 [2010] FWA 2235 at [17]
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