Maseray Kamara v Freshfields Aged Care Pty Ltd T/A Kensington Park Nursing Home

[2015] FWC 907

[2015] FWC 907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maseray Kamara
v
Freshfields Aged Care Pty Ltd T/A Kensington Park Nursing Home
(U2015/2313)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Ms Maseray Kamara alleged that the termination of her employment by Freshfields Aged Care Pty Ltd was unfair.

[2] Ms Kamara’s employment with Freshfields ended on 5 December 2014 and her application was not lodged until 13 January 2015. The unfair dismissal application was therefore not made within 21 days of the date of the dismissal.

[3] The application was listed for an extension of time hearing on 5 February 2015.

[4] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances, the Commission must have regard to the following criteria.

(a) the reason for the delay;

[5] Ms Kamara said that she had to go to Sydney on 11 December 2014 because her sister was ill and she did not return to Perth until 7 or 8 January 2015. Ms Kamara said that upon her return she completed the form and lodged it. By the time Ms Kamara returned to Perth the 21 days had passed. Ms Kamara also advised that she needed someone to help her because she lacked English skills. Ms Kamara advised Freshfields, at the meeting on 3 December 2014, that she would lodge an unfair dismissal claim. Ms Kamara’s application was signed on 9 January 2015 and there was no explanation of why she then took until 13 January 2105 to lodge her application.

[6] Even if I accept that Ms Kamara’s sister’s illness explained why she did not lodge before she returned to Perth that does not explain the delay after 7-8 January 2015. Even if I accept that Ms Kamara had difficulty with English and I note that she advised on her form that she did not require an interpreter or any special assistance, she signed the application on 9 January 2015 but did not file it until 13 January 2015.

[7] Ms Kamara’s explanation for the delay does not weigh in favour of granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[8] M Kamara was aware of the dismissal on the date it took effect. This weighs against the granting of an extension of time.

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

[9] Ms Kamara did not take any action other than lodging this application to dispute the dismissal. She did however put Freshfields on notice prior to the dismissal that she would file an unfair dismissal application.

[10] This criterion is neutral.

(d) prejudice to the employer (including prejudice caused by the delay);

[11] Freshfields says it would be prejudiced if an extension of time were granted. The person with knowledge of the matter, after the 21 days had elapsed, took their annual leave and is currently not available. Further knowing that no unfair dismissal application had been lodged a replacement employee was hired.

[12] I do not consider the prejudice to the employer weighs against granting an extension of time. I consider this criterion to be neutral.

(e) the merits of the application;

[13] Ms Kamara disputes that she engaged in the conduct that lead to her dismissal. Freshfields said they conducted an investigation into the incident and formed the view that Ms Kamara did engage in conduct that warranted her dismissal. I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However as Ms Kamara’s case is not unarguable, I find this criterion weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[14] This criterion is neutral.

Conclusion

[15] I find that there are no exceptional circumstances that warrant the granting of an extension of time. Ms Kamara’s lack of a reasonable explanation for the whole of the delay weighs against a finding of exceptional circumstances. This is not a case where the strength of Ms Kamara’s case is sufficient to outweigh her lack of a reasonable explanation for the delay. Ms Kamara’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

M. Kamara on her own behalf.

L. Jackson for the Respondent.

Hearing details:

2015.

Melbourne and Perth.

5 February.

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