Lynne Finnegan v Berry Clever Bookkeeping

[2016] FWC 1384

[2016] FWC 1384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lynne Finnegan
v
Berry Clever Bookkeeping
(U2016/465)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 MARCH 2016

Application for relief from unfair dismissal.

[1] On 4 February 2016, Ms Lynne Finnegan made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Finnegan alleged that the termination of her employment by Berry Clever Bookkeeping on 13 January 2016 was unfair.

[3] Her unfair dismissal application was not made within 21 days of the date of the dismissal.

[4] On 9 February 2016, correspondence was sent to Ms Finnegan pointing out that her application appeared to have been made outside the time frame allowed under the Act. Ms Finnegan was advised that she must be allowed an extension of time to proceed with her unfair dismissal application.

[5] In that correspondence, she was advised:

“Your application has been allocated to me to decide whether or not to extend the time for you. When deciding whether or not to extend the time for your application, the Fair Work Act 2009 obliges me to consider a number of issues which I have set out below.

● The reason for the delay;
● Whether you first became aware of the dismissal after it had taken effect;
● Any action you took to dispute the dismissal;
● If there is any disadvantage to the employer (including disadvantage caused by the delay);
● The merits of the application; and
● Fairness between you and any other persons in a similar position.

To assist me in making a determination on whether I should allow an extension of time, I require you to complete the documents enclosed with this letter (Applicant’s Outline of Argument: extension of time and Applicant Statement of Evidence).

Unless you request a hearing in person or by telephone or video, the information provided in the attachments and any other documents you supply will be what I rely on when I consider your application.

As an example, if you want me to take into consideration a medical condition, you should supply a medical certificate or report. The certificate/report should explain how your medical condition prevented you from making the application in time.

If the information you provide to the Commission persuades me that there might be exceptional circumstances justifying an extension of time for the lodgement of your application, I will give your former employer an opportunity to be heard, either in writing or in person, if they oppose me allowing an extension of time.

Alternatively, if the Commission does not receive a response from you by close of business 19 February 2016, and no request is made for you to be heard in person, by telephone or video conference, then I will consider your extension of time application on the material before me without further notice to you.”

[6] On 23 February 2016, further correspondence was emailed to Ms Finnegan as follows:

“I refer to the attached correspondence sent by Deputy President Gooley on 9 February 2016.

In accordance with that correspondence you were required to complete, file and serve the Applicant’s Outline of Argument: extension of time and Applicant Statement of Evidence by close of business on 19 February 2016. To date the Fair Work Commission has not received a response.

You are therefore requested to complete and return the attached Applicant’s Outline of Argument: extension of time and Applicant Statement of Evidence by close of business 1 March 2016. If no response is received by this date Deputy President Gooley will determine the matter on the papers filed to date.”

[7] Ms Finnegan did not reply to that correspondence.

[8] In the circumstances of this matter, I am satisfied that Ms Finnegan has not lodged her application within the 21 days of dismissal. Ms Finnegan has not filed anything to support her application for an extension of time. I am therefore not satisfied that there are exceptional circumstances.

[9] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[10] Consequently, the application is dismissed under section 587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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