Michelle Lanyon v Prime One Services Pty Ltd

[2014] FWC 3290

[2014] FWC 3290

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michelle Lanyon
v
Prime One Services Pty Ltd
(U2014/6620)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 19 MAY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 16 May 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 17 April 2014 Ms Lanyon lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief in relation to the termination of her employment with Prime One Services Pty Ltd (Prime One).

[3] In that application, Ms Lanyon advised that her dismissal took effect on 26 March 2014. She advised that the application was made within time.

[4] The application was referred to me for consideration. On 23 April 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 16 May 2014. Ms Lanyon was required to provide a witness statement and a copy of any document relied upon, by 9 May 2014.

[5] An Employer’s Response (Form F3) to the application was received on 13 May 2014. That response asserted that Ms Lanyon was dismissed on 25 March 2014 and that this was confirmed to her by a mobile phone text message on 26 March 2014 and a letter dated 28 March 2014. The Form F3 confirmed that Prime One objected to an extension of time.

[6] Ms Lanyon provided material to the Fair Work Commission (FWC) on 29 April 2014.

[7] The extension of time issue was considered through a telephone conference on 16 May 2014. A sound file record of this conference was kept. Ms Lanyon attended this conference. A request made by Mr Reid, as agent for a grant of permission to be made under s.596(2)(a) of the FW Act was refused. Prime One was then represented by its Director, Mr Wright.

[8] I have considered the extension of time issue on the material before me.

[9] The information provided to the parties included a copy of s.394 and the factors I am required to take into account in considering this matter.

[10] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[11] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. At the conference there was no dispute that Ms Lanyon was advised of the termination of her employment on 25 March 2014. Consequently, I have concluded that the application was lodged one day outside of the 21 day time limit. This means that the application can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Ms Lanyon’s circumstances can be regarded as exceptional for the purposes of this subsection.

[12] Ms Lanyon has provided a number of reasons for the delay. She advised that she was not aware of the time limit but was given the FWC telephone number soon after she was dismissed. Ms Lanyon asserted that she tried to telephone this number on numerous times over some weeks but she encountered telephone messages advising her of long call delays and that she was limited by her finances and lack of mobile telephone credit. Ms Lanyon advised that when she finally made contact with FWC she was told that she could only access the application through the internet. She advised that as she did not have access to the internet she then had to obtain an application form through her job placement provider. Ms Lanyon advised that she was then unsure of how to send the application to the FWC and gave it to a friend who ultimately faxed it to FWC. I have found this explanation to be inconsistent with Ms Lanyon’s confirmation to me of her signature and the date of 27 March 2014 on the application. To the extent that Ms Lanyon has then argued that she dated the application as the 27 March 2014 even though she signed it much later, I do not accept her position as credible. Ms Lanyon has not provided any credible reason why she would have signed and dated the application on the day after she was dismissed if, as she asserts, she filled out that application form some weeks later. To the extent that the delay was due to her lack of awareness of the time limit, this cannot be an acceptable reason for the delay. As I do not consider Ms Lanyon’s advice about the date which she recorded on the application to be credible, I am not satisfied about the accuracy of her stated reasons for the delay. In her written advice to me, Ms Lanyon advised that she was depressed following the termination of her employment but evidence that establishes a medical basis upon which she was unable to lodge the application has not been provided. Having considered all of these factors I am not satisfied that Ms Lanyon has established to me a satisfactory reason for the short delay involved.

[13] On the information provided in Ms Lanyon’s application, I am satisfied that she was made aware of the termination of employment decision on 26 March 2014 which I have taken as the date that termination of employment took effect.

[14] Again, from the information provided to me it is not clear that Ms Lanyon challenged the termination of her employment. Apart from the late lodgement of this application I am unable to discern that Ms Lanyon took further action in this respect. It is clear that she has taken action to recover claimed underpayments and to raise other concerns regarding her previous employment but these do not relate to the termination of her employment.

[15] The granting of an extension of time would prejudice the respondent in this matter.

[16] In terms of the merits of the application, the information made available to me does not enable any definite conclusion with respect to the merits of the application. Consequently this factor neither favours nor mitigates against the extension of time sought.

[17] Considerations of fairness relative to persons in similar circumstances to Ms Lanyon do not support an extension of time.

Conclusion

[18] For the reasons I have set out above, Ms Lanyon’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR550750) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

M Lanyon on her own behalf.

G Wright representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

May 16.

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