Marianne Smith v Peak Physique Coaching and Nutrition Pty Ltd

[2018] FWC 6749

[2018] FWC 6749

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Marianne Smith
v
Peak Physique Coaching and Nutrition Pty Ltd
(C2018/4001)

COMMISSIONER MCKINNON MELBOURNE, 31 OCTOBER 2018

Application to deal with a general protections dismissal dispute – late lodgement – extension of time – application granted.

[1] Marianne Smith has applied to the Commission to deal with a general protections dismissal dispute under section 365 of the Fair Work Act 2009 (the Act) in relation to her employment with Peak Physique Coaching and Nutrition Pty Ltd (Peak). The application was not made in the standard 21 days required by the Act. This decision deals with whether additional time should be allowed for Ms Smith to make her application.

Consideration

Reason for delay

[2] Ms Smith says she was dismissed on 7 May 2018 and that she immediately took steps to dispute her dismissal after that time. She sought assistance from the Ombudsman in relation to her concerns and it was after that process was exhausted that she applied to the Commission.

[3] Ms Smith says that she was confused by the mixed messages being provided by Peak in response to her concerns and that her focus was on trying to resolve the dispute without assistance. She says every other avenue was exhausted without success before she made this application.

[4] This factor weighs in favour of the grant of additional time.

Action taken to dispute the dismissal

[5] In the days and weeks after 7 May 2018, Ms Smith sought to meet with Peak to discuss her dismissal and any prospect of return to work. After communications broke down, on 27 May 2018 Ms Smith applied for assistance from the Fair Work Ombudsman seeking payment of her accrued and statutory entitlements. On 20 June 2018, the dispute was mediated by the Ombudsman and there was an agreed process toward resolution. According to Ms Smith, Peak subsequently failed to comply with the agreement reached. She made a further attempt to communicate with Peak on 9 July 2017. On 22 July 2018, she made this application to the Commission.

[6] While the primary focus of Ms Smith’s action since 27 May 2018 has been on the recovery of her entitlements, I am satisfied that she was also seeking answers over her dismissal and the reasons for it.

[7] This factor weighs in favour of the grant of additional time.

Prejudice to the employer

[8] Peak did not participate in the hearing on the application for extension of time and has not filed any response to the claim or other evidence in the Commission. There is nothing before me to indicate that there is any prejudice to Peak that will flow from the grant of additional time that is distinct from the ordinary burden of a participant in litigation.

[9] This factor does not weigh against the grant of additional time.

Merits of the application

[10] The material before me establishes that Ms Smith has an arguable case in relation to Peak taking adverse action against her because of the existence or exercise of her workplace rights, as well as in relation to sham contracting.

[11] This factor weighs in favour of the grant of additional time.

Fairness as between others in a like situation

[12] This criterion is not relevant to the application as there are no known persons in a like situation to Ms Smith.

Conclusion

[13] Ms Smith has gone to significant lengths to address concern about her dismissal and the related non-payment of entitlements with Peak, both formally and informally. For reasons that are not apparent, Peak has chosen not to take an active role in the proceedings and has instead taken steps that suggest an intention to avoid its obligations under the Act. I am satisfied that there are exceptional circumstances in this matter that warrant the grant of additional time.

[14] Ms Smith is allowed additional time to make her application under section 366 of the Act until 22 July 2018.

[15] The application for extension of time is determined and the matter will now be referred for conference.

COMMISSIONER

Appearances:

M Smith on her own behalf

Hearing details:

2018.

Melbourne.

October 31.

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