Kylie Rosewarne v CC Hair Pty Ltd T/A CC Hair

[2014] FWC 6159

[2014] FWC 6159

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Rosewarne
v
CC Hair Pty Ltd T/A CC Hair
(U2014/11082)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 5 SEPTEMBER 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 4 September 2014 I advised that this application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 23 July 2014 Miss Rosewarne lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief in relation to the termination of her employment with CC Hair Pty Ltd T/A CC Hair (CC Hair). After being alerted to a likely error in that application, Miss Rosewarne lodged an amendment to that application on 19 August 2014.

[3] In that amended application, Miss Rosewarne advised that her dismissal took effect on 23 June 2014. She asserted in the application that it was lodged within 21 days of her dismissal taking effect.

[4] The application was referred to me for consideration. On 22 August 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 4 September 2014. Miss Rosewarne was required to provide a witness statement and a copy of any document relied upon, by 28 August 2014.

[5] An Employer’s Response (Form F3) to the application was received on 28 August 2014. That response confirmed that Miss Rosewarne’s dismissal took effect on 23 June 2014. The Form F3 asserted that Ms Rosewarne was not dismissed.

[6] Miss Rosewarne did not comply with the requirement to provide material to the Fair Work Commission (FWC) and to CC Hair by 28 August 2014.

[7] The extension of time issue was considered through a telephone conference on 4 September 2014 A sound file record of this conference was kept. Miss Rosewarne attended this conference. CC Hair was represented by Ms Mangiola.

[8] The advice provided to Miss Rosewarne on 22 August 2014 stated:

“If you fail to comply with these instructions the Senior Deputy President may conclude that you no longer seek to pursue the application and close the file accordingly. Alternatively, the Senior Deputy President may determine the matter on the material before him.”

[9] At this conference Miss Rosewarne advised that she had overlooked the requirement to provide the requested material. Notwithstanding this, I provided her with the opportunity to detail her position relative to the extension of time issue and have considered this issue on the material before me.

[10] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[11] Section 394 states:

“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.”

[12] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged some 9 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Miss Rosewarne’s circumstances can be regarded as exceptional for the purposes of this subsection.

[13] Miss Rosewarne’s position is that she was unaware of the 21 day time limit and that the delay was a consequence of her attempts to understand the legislative requirements and her discussions with family members about whether to pursue the application. I do not consider that this explanation of the delay represents an adequate reason or, for that matter, an exceptional circumstance.

[14] Miss Rosewarne has confirmed that she was made aware of the termination of employment decision on 23 June 2014 which was the date that termination of employment took effect.

[15] Ms Rosewarne has confirmed that, apart from making this application, she did not take any further action in relation to the termination of her employment.

[16] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter but this, of itself, cannot form the basis for extending the time for lodgement of the application.

[17] In terms of the merits of the application, the information before me does not enable a preliminary conclusion to be reached. Accordingly, I have regarded the merits of the application as a neutral factor in the consideration of any extension of time.

[18] Considerations of fairness relative to persons in circumstances where no acceptable reason for the delay have been advanced, do not support an extension of time.

Conclusion

[19] For the reasons I have set out above, Miss Rosewarne’s circumstances do not support an extension of time. On the information before me those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR555118) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

K Rosewarne on her own behalf.

C Mangiola for the Respondent.

Hearing details:

2014.

Adelaide:

September 4.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR555117>