Miss Chrystal Durkin v Kingrise Corporation Pty Ltd T/A the Generous Squire
[2014] FWC 8185
•24 NOVEMBER 2014
| [2014] FWC 8185 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Chrystal Durkin
v
Kingrise Corporation Pty Ltd T/A The Generous Squire
(U2014/11982)
COMMISSIONER CLOGHAN | PERTH, 24 NOVEMBER 2014 |
Application for relief from unfair dismissal - jurisdictional objection - out of time.
[1] On 26 August 2014, Miss Chrystal Durkin (Miss Durkin or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, Kingrise Corporation T/A The Generous Squire (Employer).
[2] Miss Durkin states in her application that her dismissal took effect on 4 August 2014.
[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2) of the FW Act.
[5] Miss Durkin has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 26 August 2014), if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.
[6] The relevant legislative provisions are as follows:
“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.
(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.”
[7] To resolve the question of whether there were exceptional circumstances to allow the application to be filed on 26 August 2014, I issued Directions to the parties on 3 September 2014 advising that the matter would be determined by written submissions. Having received the written submission, this is my decision and reasons for decision as to whether there are exceptional circumstances to allow the application to be filed on 26 August 2014.
CONSIDERATION
[8] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:
“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.
[9] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.
[10] The burden lies with Miss Durkin to make out her case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.
Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?
[11] The Applicant was requested in the Directions to address each criterion in s.394(3) of the FW Act.
[12] In accordance with the Directions, the Applicant, on 15 September 2014, provided to the Commission the following submission, which due to its briefness, is reproduced in its entirety below:
“To Adam Kapinkoff,
Pursuant to the application of unfair dismissal claim which was lodged on the 26th of August, my claim lapsed the 21 days allowed to place an application due to the length of time in which it took to receive from your possession my Approved Managers licence. As my records shows I emailed you at [email protected] on a number of occasions, the 8th, 15th and 20th of August 2014, of which I received no reply or correspondence. It was not until I received confirmation on the 26th of August that my license had been posted to my home address did I lodge the claim.
As the liquor licensing legislation states, I am unable to work in a venue in the capacity of Approved Manager without the licence in my possession. I believe it unreasonable that after three documented requests for the licence to be posted to me I received no correspondence until the 26th August. It is my belief that my licence was withheld until the due date of lodgement. Attached is a copy of email correspondence I sent to the Generous Squire requesting my licence be posted, and a copy of the email dated 26th August confirming the license had been sent.
I also have grounds to believe that the application of an unfair dismissal claim may have affected my prospects of gaining further employment.
Regards
Chrystal Durkin”
[13] The Employer provided a detailed response on 22 September 2014, which addressed both Miss Durkin’s submission and the seven (7) reasons in her application why she considered her dismissal unfair.
[14] The Applicant responded with a further submission on 23 September 2014. The Applicant chose not to respond to the Employer’s details and specifically states, “I shall only respond to the section addressing the time lapse of the application at this stage in the process”.
[15] The Applicant submits that the delay in filing the unfair dismissal application related to the alleged tardiness of the Employer in providing her with her Approved Managers’ licence.
[16] The Applicant is most probably correct that she cannot work in the capacity of an Approved Manager unless she possesses the licence. However, it is not a pre-requisite to filing an application in the Commission alleging unfair dismissal.
[17] Miss Durkin’s reasoning is most probably sound regarding the necessity of an Approved Managers’ licence concerning future employment but that reasoning, and the circumstances, are not connected to an application to the Commission.
[18] It is notable that the Applicant’s application and attached documentation does not refer to the Approved Managers’ licence.
[19] I find that the Applicant has not provided a valid reason for the delay in filing the application.
Paragraphs 394(3)(b), (c), (d), (e) and (f)
[20] The Applicant has not addressed the criteria in paragraphs 394(3)(b), (c), (d), (e) and (f) of the FW Act.
[21] The relevant submission by the Employer is that “...she [Miss Durkin] was immediately dismissed and we have not heard anything from her since (besides emails regarding Approved Managersi card). Thus, there was no dispute or delay period in Chrystal knowing she was terminated, which could have potentially affected the 21-day lodgement period”.
[22] I find that the Applicant became that she was dismissed on 4 August 2014.
[23] On the uncontested submission of the Employer, there was no communication between the parties after the dismissal with the exception of matters related to the Approved Managers’ licence.
[24] The Employer does not make any submission concerning prejudice to it as the result of late filing of the application.
[25] I have not come to any conclusion regarding the merits of the application and have adopted a neutral position with respect to this criterion in my assessment of whether there are exceptional circumstances to allow further time to file the application.
[26] It would appear that the criterion in paragraph 394(3)(f) of the FW Act is not a relevant consideration. To the extent it is relevant, I have adopted a neutral position with respect to this criterion.
CONCLUSION
[27] In conclusion, for the reasons set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Miss Durkin filing her application beyond the statutory timeline of 21 days after the dismissal took effect. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.
COMMISSIONER
Final written submissions:
Applicant: 15 and 23 September 2014.
Respondent: 22 September 2014.
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