Miss Alissa Keane v Tadam Enterprises T/A Passion Hair and Beauty

[2013] FWC 1620

[2013] FWC 1620

FAIR WORK COMMISSION

DECISION

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

Miss Alissa Keane
v
Tadam Enterprises T/A Passion Hair and Beauty
(C2013/2884)

COMMISSIONER CARGILL SYDNEY, 18 MARCH 2013

Application to deal with contraventions involving dismissal.

[1] On 30 January 2013 Ms A. Keane (the applicant) lodged an application pursuant to section 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (FWC) to deal with a general protections dispute concerning her dismissal. Her former employer, and respondent to the application, is Tadam Enterprises Pty Ltd trading as Passion Hair and Beauty (the respondent).

[2] A conference to deal with the dispute was conducted on 27 February 2013. The matter did not resolve.

[3] According to the application the applicant’s dismissal occurred on 20 October 2012. The application was filed 42 days after the expiration of the 60 day time limit which applied to dismissals which took place before 1 January 2013. It is therefore necessary to determine whether additional time should be allowed for the filing of the application.

[4] On 1 March 2013 I wrote to each of the parties inviting them to put submissions and any other material concerning the issue of whether additional time should be allowed. As at the date of this decision the applicant has not provided any such submissions and material. In the circumstances the respondent has understandably also not put any submissions.

[5] The question of whether to allow additional time for the making of an application of this type is governed by section 366(2) of the Act which is in the following terms:

“FWC may allow a further period if FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[6] The applicant has not provided any reason for the delay either in the original application or during the conference. As mentioned earlier, she has provided nothing in response to my correspondence.

[7] There is no indication that the applicant took any other action to dispute her dismissal. I am unable to make any finding concerning prejudice to the employer.

[8] The merits of the substantive claim are contested and were the subject of some debate during the conference. In the circumstances I am unable to conclude that the claim is without merit.

[9] The matter of fairness between the applicant and other persons in a like position is of little relevance in this case.

[10] Taking all of the matters in section 366(2) into account, I am not satisfied that there are exceptional circumstances in this case such that I should allow further time for the filing of the application.

[11] The application is dismissed.

COMMISSIONER

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