Lillian Lawford v FaHCSIA Broome

[2013] FWC 5222

[2013] FWC 5222

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lillian Lawford
v
FaHCSIA Broome
(U2012/15859)

DEPUTY PRESIDENT MCCARTHY PERTH, 2 AUGUST 2013

Unfair dismissal - Jurisdictional objection.

[1] Ms Lillian Lawford (the Applicant) was employed by the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA the Respondent). The Applicant lodged an application for unfair dismissal remedy on 22 November 2012 (the application).

[2] The application stated that the Applicant was notified of and had her employment terminated on the same day namely 16 September 2012. An application of this type is required to be lodged within a specified time. At that time the time allowed for the lodgement was 14 days. Clearly the application was lodged outside the allowable time.

[3] On 6 December 2012 FaHCSIA lodged an employer response to the application ( the Employer response). The Employer response objected to the application on the following grounds

“1. The application for unfair dismissal has been lodged more than 14 days after the employee’s employment ceased. Ms Lawford’s employment ceased three months ago. Ms Lawford has not demonstrated any exceptional circumstances explaining the delay in her making an application. In particular, she has not given any information on the reason for’ the delay.

2. Ms Lawford was employed under a contract of employment for a specified period of time and this contract expired. Ms Lawford is therefore not covered by the unfair dismissal laws.”

[4] A conciliation conference was listed for and endeavoured to be held on 12 December 2012. The Applicant did not attend. The application was allocated to me on 19 December 2012. I wrote to the applicant on 21 December 2012 requesting that she provide explanation as to why the application should be allowed and identified the issues she should provide me information about in order that I could consider whether exceptional circumstances existed for an extension of time to be allowed.

[5] The Applicant sent an email on 3 January 2013 simply providing a contact number. An email was sent in response by my Associate again seeking the information I requested in my letter of 12 December 2012. My Associate made a number of further endeavours to ring the Applicant but was unsuccessful.

[6] I decided to list the matter for Conference/Hearing. On 22 May 2013 I issued a notice of listing for 5 June 2013. Initially I listed it in Broome but later decided to hold the hearing from Perth by phone. On 30 May 2013 I wrote again to the Applicant outlining the issues she should address at that Hearing.

[7] I conducted the Conference/Hearing on 5 June 2013. The Applicant attended by phone from Broome. The Respondent attended by phone from Canberra.

[8] At the conference hearing the Respondent relied on documentary evidence of the nature of the contract of employment. It was clear from those contracts that the Applicant had been engaged on a number of fixed term contracts. The initial contract was for a non-on-going position from 31 August 2011 to 29 February 2012. The initial letter of advice of non-ongoing employment stated that “Your employment to perform the above duties will be for the period 31 August 2011 to 29 February 2012.”

[9] Another initial contract was signed on 12 March 2012. The Notice of Engagement in that contract stated that the period of employment was for the period 12 March 2012 to 30 June 2012.

[10] A notice of Notice of Extension was signed on 13 June 2012 for that contract which stated that the period of employment was for the period 1 July 2012 to 30 August 2012.

[11] It is clear from the explanations stated provided and the documentation provided that the Applicant was employed under a contract of employment for a specified period of time. Regardless of the expectations the Applicant may have held about a further extension or a permanent position the facts are that her employment expired though the efflux of time. Pursuant to the provisions of s.386(2)(a) the Applicant therefore cannot be considered to have been dismissed from her employment.

[12] The application is therefore dismissed.

[13] For the sake of completeness I also considered whether there were exceptional circumstances such that the time allowed for lodging the application should be extended. The Applicant knew that there time limits for application of this nature but said she had difficulty with communications and lack of facilities to lodge an application in Broome. She lives 25 kilometres outside the community and there were consequentially difficulties. The Applicant says she went to an office in Broome to either seek advice and possibly complain or lodge an application but it was closed.

[14] I consider that the reasons for the delay were not convincing. I am reasonably familiar with the Broome area and have been to Broome several times. I have also conducted hearings in Broome involving remote communities outside of Broome. Whilst the reasons given by the Applicant for the delay might explain some cause for delay, it does not explain the extent of the delay.

[15] The Applicant also did not provide any sufficient and substantive explanations of any actions she took to dispute the termination.

[16] I do not consider there would be a prejudice to the employer.

[17] There is little if any merit for the application. The Applicant’s real complaint is that FaHCSIA did not renew her fixed term contract.

[18] The fairness between the Applicant and other persons in a similar position is neutral in my considerations.

[19] I do not consider there are exceptional circumstances and therefore determine to not extend the time allowing for the application to be lodged.

DEPUTY PRESIDENT

Appearances:

Ms L Lawford self-represented

Ms L MacLean from the Respondent company

Hearing details:

2013.

Perth:

June, 5.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR539603>