Michelle Aynsley v Contracting Employment Services T/A Ambition Recruitment

[2011] FWA 1333

[2011] FWA 1333

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Michelle Aynsley
v
Contracting Employment Services T/A Ambition Recruitment
(C2010/5495)

COMMISSIONER ASBURY BRISBANE, 3 MARCH 2011

Alleged contravention - dismissed during temporary absence due to illness - failure of applicant to comply with directions - application dismissed.

[1] This is an application under s.365 of the Fair Work Act 2009 (the Act) by Ms Michelle Aynsley (the Applicant), alleging her employment was terminated by Contracting Employment Services trading as Ambition Recruitment (the Respondent) while the Applicant was temporarily absent due to illness.

[2] The date upon which the Applicant alleges she was dismissed was 10 September 2010. The application was made on 11 November 2010, some 61 days after the dismissal took effect.

[3] Section 366 of the Act requires that an application under s.365 be made within 60 days after the dismissal took effect, or within such further period as FWA allows. In deciding whether to allow a further period, FWA is required to be satisfied that there are exceptional circumstances, taking into account the following matters set out in s.366(2) of the Act:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay) and

(d) the merits of the application; and

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

[4] On 22 November 2010 Fair Work Australia received a Form F8A - Response to an Application for FWA to deal with a General Protections Dispute from the Respondent. In that form the Respondent contended that the Applicant had not been terminated by the Respondent, and that the Applicant had been employed on an assignment-by-assignment basis.

[5] A conference was held on 7 December 2010. At that conference the Respondent contended that if the Applicant’s submission as to the date of her dismissal was accepted, then the application was made outside the time required in s.366 of the Act. Accordingly, before FWA could deal with the application, an extension of time would be required. The Respondent indicated its opposition to such an extension.

[6] On 7 December 2010, Directions were issued, requiring that the Applicant file in FWA by 7 January 2011:

(a) Submissions in relation to why FWA should allow an additional period for the application to be made; and

(b) Witness statements from any witness upon which the Applicant intended to rely, including a statement made by you.

[7] The Respondent was directed to file submissions and witness statements in response, by 7 February 2011. The Directions Order also set out the factors in s.366(2) that FWA is required to take into account and required that the submissions and witness statements address those factors. The Directions Order also stated that material received outside the specified time frame would not be accepted.

[8] On 11 January 2011 the Applicant left a voicemail message for my Associate asking for an extension of time in which to file her submissions and witness statements, due to the fact that she had been unwell and unable to file her material. In a subsequent conversation with my Associate, the Applicant further advised that she had not had access to her material due to being evacuated from her building because of flooding in Brisbane. The Applicant was advised by my Associate to submit her request for an extension of time to file submissions and witness statements in writing, and that her request would be considered.

[9] On 18 January 2011 my Associate forwarded this information to the Respondent, and suggested that the matter of compliance with Directions would be best dealt with by way of a further Directions Conference to be held in the following week, when all parties had returned to work.

[10] An email was then received from the respondent advising of their objection to the granting of an extension of time for the Applicant to file submissions and witness statements, and a request for FWA to dismiss the application due to the applicant’s failure to comply with the Directions. The basis of the objection was that flooding in Brisbane occurred after 7 January 2011, when the material was required to be filed.

[11] On 31 January 2011 my Associate sent an email to the applicant in the following terms:

“Please find attached a response received from the respondent in relation to your failure to comply with the Directions issued on 7 December 2010.

To date you have not provided a formal request for an extension of time. Please advise if you intend to proceed with your application. In the absence of any such advice your application will be taken to be withdrawn.”

[12] To date the Applicant has not complied with the Directions Order or made a formal application for an extension of time in which to do so. The applicant has not responded to the email of 31 January 2011. This is notwithstanding the clear warning set out in the Directions Order that material received after the expiry of the time frame would not be accepted.

[13] Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA 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.

(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[14] In the circumstances, and in accordance with s.587(3)(a) I hereby dismiss the application of Michelle Aynsley in C2010/5495.

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