Miss Eleni Barelos v Bogicevic Family Trust trading as Coolibah Herbs

[2011] FWA 2576

[2011] FWA 2576

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

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

Miss Eleni Barelos
v
Bogicevic Family Trust trading as Coolibah Herbs
(U2011/4282)

COMMISSIONER SMITH MELBOURNE, 4 MAY 2011

Extension of time; not granted.

[1] The following decision, now edited, was issued during proceedings conducted on 29 April 2011.

[2] This is an application by Ms Barelos for an extension of time in which to lodge her application for hearing under s.394 of the Fair Work Act 2009. The Act provides that applications must be made within 14 days after a dismissal took effect, but there is some issue about whether or not there was a dismissal or a resignation. For the purposes of the application of an extension of time I will take it as a dismissal rather than a resignation.

[3] If I am looking towards whether a further period for the application is to be made I must be satisfied that there are exceptional circumstances taking into account the reason for the delay, whether the person first became aware of the dismissal after it had taken effect, any action taken by the person to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the person and other persons in a similar position.

[4] One item which is contained in the materials is a download from a discussion that was held with an officer of the Fair Work Ombudsman when Ms Barelos expressed her concern about employment. During that conversation the Fair Work Ombudsman’s representative advised, “If they do terminate your employment, contact Fair Work Australia on 1300 799 675 re[garding] an unfair dismissal”.

[5] The applicant gives two reasons as to why she has filed the application late. The first is that she was unaware of the need to file the application. That cannot be sustained in the face of the advice given to her by the Fair Work Ombudsman. The second matter relates to injury to both her knee and ankle for which she has been receiving treatment.

[6] I am not satisfied that such an injury would preclude action from being taken to pursue an unfair dismissal claim.

[7] In relation to s.394(3)(b), there is no issue as to when the applicant became aware of the dismissal. In relation to s.394(3)(c), action taken by the person to dispute the dismissal, there is no evidence that any action was taken until the matter was lodged. So the matter was lodged on 18 January 2011. In relation to prejudice to the employer, I don’t think that matter arises.

[8] The merits of the application, I make no judgment as to the merits. The only judgment one is invited to take from time to time is whether on the applicant’s own case it’s wholly without merit. Given that there is some contest about the facts, I don’t make any findings in relation to that.

[9] The final reason goes to s.394(3) and that is fairness as between the person and other persons in a similar position. The reasons given are reasons which can be readily accessed by persons on a number of occasions and, if done so, would render the 14 days requirement under the Act meaningless. Accordingly, I decline to extend the application and the application is dismissed.

COMMISSIONER

Appearances:

E Barelos the applicant.

C Cody of Counsel on behalf of Bogicevic Family Trust trading as Coolibah Herbs.

Hearing details:

2011.

Melbourne:

April, 29.

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