Liza Hasani v Aih Group T/A Trippas White

[2010] FWA 9640

[2010] FWA 9640

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Liza Hasani
v
AIH Group T/A Trippas White
(C2010/5039)

COMMISSIONER GOOLEY MELBOURNE, 14 DECEMBER 2010

[1] Ms Liza Hasani made an application pursuant to section 365 of the Fair Work Act 2009 (FW Act) on 27 September 2010 alleging that she was dismissed in contravention of part 3-1 of the FW Act. Ms Hasani’s employment was terminated either on 30 April 2010 or at the latest 6 May 2010 as claimed by Ms Hasani. Irrespective of the actual day of the dismissal the application was lodged more than 60 days after Ms Hasani was dismissed.

[2] The application was listed for conference at 9.30 am on 17 November 2010 but Ms Hasani did not attend the conference. My associate unsuccessfully attempted to contact Ms Hasani. At 10.47 am Ms Hasani contacted my chambers and advised that she had been delayed in traffic.

[3] On 17 November 2010 I wrote to Ms Hasani and advised her that her application was not filed within 60 days of the termination of her employment and that no application for an extension of time had been received by Fair Work Australia.

[4] I referred Ms Hasani to section 365(2) of the FW Act which sets out the matters to be considered by Fair Work Australia when deciding whether to grant an extension of time and invited Ms Hasani to put forward any written submissions in support of an extension of time application.

[5] I further advised Ms Hasani that the respondent had advised at the conference that Ms Hasani had lodged a complaint with the Human Rights and Equal Opportunity Commission. (HREOC). This complaint predated this application. The respondent advised that this complaint was on going.

[6] Ms Hasani replied to my correspondence on 25 November 2010.

[7] She advised that she had previously filed an unfair dismissal claim. 1 That application was not lodged within the 14 day time limit and Commission Blair dismissed Ms Hasani’s application for an extension of time on 10 September 2010.2

[8] Ms Hasani provided an explanation for her non attendance at the conference on 17 November 2010 but the only explanation she provided for the lateness of this application was that her unfair dismissal application was dismissed.

[9] Ms Hasani did not address any of the other matters set out in section 365(2).

[10] In deciding whether to grant an extension of time I must be satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay;

[11] In this case Ms Hasani did not lodge this application until her unfair dismissal claim was dismissed. Ms Hasani could not have made a general protections application while she had an unfair dismissal application on foot. However she provided no explanation for why she waited until 17 days after the dismissal of her unfair dismissal application to lodge the general protections dismissal application.

(b) any action taken by the person to dispute the dismissal;

[12] Ms Hasani lodged both an unfair dismissal claim and a complaint to the HREOC.

(c) prejudice the employer (including prejudice caused by the delay);

[13] For the purpose of this decision I assume there is no prejudice to the employer.

(d) merits of the application;

[14] Ms Hasani was employed by AIH Group and performed work at the Emirates Lounge at Melbourne International Airport. Ms Knoetze, the General Manager Human Resources in her letter of termination to Ms Hasani advised that Emirates Lounge had written to them advising that Ms Hasani “could no longer work in the Emirates Lounge at Melbourne Airport due to her disregard for their grooming standards, repeated lateness and continued unwillingness to perform cleaning duties.”

[15] Ms Hasani was on light duties due to an injury and says she was dismissed because of her injury. For the purpose of this decision I assume she alleges a breach of section 351 of the FW Act.

[16] It is not possible on the information before me to determine the strength of Ms Hasani’s case. However I note in his decision rejecting the application for unfair dismissal Commissioner Blair held that the “claim would not be successful.”

(e) fairness as between the person and other persons in a like position.

[17] This provision is not relevant in this matter.

Other matters

[18] Ms Hasani also has a complaint about her dismissal before HREOC which is dated 19 July 2010. I advised Ms Hasani that section 725 of the FW Act meant that there was no jurisdiction to deal with the general protections dismissal application while this application was on foot. Ms Hasani did not respond to this aspect of the correspondence. Given my decision in this matter it is not necessary to consider this matter further.

Conclusion

[19] Ms Hasani was able to bring a general protections dismissal application from the date of her dismissal. Having to elect between a general protections dismissal application and an unfair dismissal application is a common circumstance where discrimination is allegedly one of the reasons for the termination of employment. In fact section 725 of the FW Act make such an election mandatory. However one of the consequences of the election is that, should the initial application fail for want of jurisdiction, the time limit for lodging the other application may expire as occurred in this case. There is nothing exceptional about this.

[20] I have had regard to Ms Hasani’s submissions in this matter and to section 365(2) of the FW Act. I do not consider that there are exceptional circumstances that warrant granting Ms Hasani an extension of time. The application is therefore dismissed.

COMMISSIONER

 1   U2010/9009

 2   PR501596

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