Marilyn Garbin v Australian College of Training Pty Ltd

[2014] FWC 7748

[2014] FWC 7748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marilyn Garbin
v
Australian College of Training Pty Ltd
(U2014/11310)

DEPUTY PRESIDENT MCCARTHY PERTH, 24 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] On 30 July 2014, Ms Marilyn Garbin (the Applicant) lodged an Unfair Dismissal Application (the Application). The Applicant asserts that she was unfairly dismissed from her employment with the Australian College of Training Pty Ltd (the Respondent).

[2] On 3 October 2014, I conducted a Directions Conference. The Conference was adjourned to allow the Respondent to provide submissions in relation to the Applicant’s Application being lodged outside the time provided by the Fair Work Act 2009 (the FW Act). On 6 October 2014, the Respondent provided those submissions. On 16 October 2014, the Applicant provided submissions in response to the Respondent’s submissions.

Considerations

[3] The Applicant stated in the Application that she was notified of her dismissal on “Tuesday 8 July, 2014 at 2:00pm”. Similar exactness is expressed as to when the dismissal took effect. The Application states that the dismissal took effect on “Tuesday 8 July, 2014 at 2:30 pm”.

[4] In the Application the Applicant also stated the following at Item 3.1:

“The course I have been teaching (the Participation Program), in Mirrabooka which includes 18 students is being merged with the course being held at the Victoria Park premises (includes about 8 students apparently).

The result is that my services are no longer required as the new staff will be teaching the current group.

I was told that the course is not financially viable.”

And at Item 3.2:

“1. I was invited to have a meeting with the General Manager - Ms Annette Onuoha and the CEO - Mr Terrance Richards at 2:00pm on Tuesday 8 July 2014.

2. At the meeting I was told that my services were no longer required due to financial viability.

3. At 2:30pm, once the meeting was finished Ms Annette Onuoha requested that I give back my company laptop computer, I was asked if I had a company mobile telephone -- I didn’t, and I was asked to hand over my work related information which I did (a white folder).

4. I was escorted to the front door and let out.

5. I had no prior notice of the meeting taking place. It was spontaneous. I didn’t know what the meeting was about until it began.

6. No options were given to me. There was no consultation whatsoever. The decision had been made and was final.

7. I had no opportunity to have a support person at the meeting to support me.

8. I was not counselled or warned by the employer of any deficiencies in my performance or conduct.”

[5] The Application also stated that the Application was lodged within the time allowed however on 31 July 2014, the day after submitting her Application, the Applicant wrote to the Perth Registry of the Fair Work Commission advising that she had realised her Application was one day late and that the reason for the delay was as follows:

“My colleague Lu Marie Sobey was also unfairly dismissed prior to me. Initially I was not going to go to the Fair Work Commission, however, I changed my mind after much deliberation. The reason I changed my mind was due to the 57 page document sent by the organisation (Australian College of Training) to Lu Marie. This document has created much stress for us both and I was only made aware of this document on Tuesday. This document has influenced my decision.”

[6] On 16 October 2014 the Applicant provided further submissions, the Applicant stated that the reason for the delay was that she had never had exposure to the Fair Work regulations nor had she ever taken part in such a process. The Applicant also submitted that she did not “the resources to have a paid professional to handle the case on her behalf”. The Applicant also submitted that another reason for the delay was an asserted ambiguity surrounding the date she was dismissed by the Respondent. The Applicant stated that she was dismissed at a meeting held on 8 July 2014. The Applicant asserted that the “process for dismissals/redundancy according to the Fair Work Act and relevant Award (Education and Service - Post Secondary Education) were not followed for my dismissal resulting in ambiguity of termination date.”

[7] For the purposes of my considerations as to whether the Application was lodged outside the time allowed I will rely on the statements in the Application lodged as the true circumstances surrounding when the dismissal took place. Thus I accept that the dismissal took effect as stated in the Application on 8 July 2014. The Application was therefore lodged outside the 21 days allowed by s.394(2)(a) of the Fair Work Act 2009 (the FW Act).

[8] I also accept from the Applicant’s Application and for the purposes of my deliberations here that the Applicant was dismissed by the Respondent.

[9] The Applicant did not provide any substantive explanation of the actions she took to dispute the dismissal. Rather she gave accounts of the considerations she was contemplating as to whether she would dispute the dismissal. The actions taken by the Applicant do not weigh in favour of a finding of an exceptional circumstance.

[10] The Respondent conceded that it would suffer little prejudice should the Application be allowed. The lack of any prejudice suffered by the Respondent weighs marginally in favour of a finding of an exceptional circumstance.

[11] The Respondent submitted that the Application has no reasonable prospects of success as the Applicant was employed on a casual basis and has not been dismissed at the initiative of the Respondent. The Applicant asserted that was a permanent employee as she worked on a regular and systematic basis. I cannot make any definitive findings regarding this element of my deliberations here. The merits of the Application weigh neither in favour of nor against a finding of an exceptional circumstance.

[12] The fairness between the Applicant and other persons in a similar position weighs against a finding of exceptional circumstances.

[13] I find that exceptional circumstances do not exist here. The Application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 16 October 2014.

Respondent, 6 October 2014.

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