Miss Julie Anita Wilson v Riverton Rossmoyne Bowling and Recreation Club
[2009] FWA 231
•8 SEPTEMBER 2009
Note: An appeal pursuant to s.604 (C2009/10596) was lodged against this decision - refer to Full Bench decision dated 15 December 2009 [[2009] FWAFB 1588] for result of appeal.
[2009] FWA 231 |
|
DECISION |
Workplace Relations Act 1996
s.643 – Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
v
Riverton Rossmoyne Bowling and Recreation Club
(U2009/10642)
COMMISSIONER WILLIAMS | PERTH, 8 SEPTEMBER 2009 |
Termination of employment – extension of time.
Introduction
[1] This decision follows an application made pursuant to s. 643 of the Workplace Relations Act 1996 (the Act) by Miss Wilson (the applicant) who sought relief following her termination of employment by Riverton Rossmoyne Bowling and Recreation Club (the respondent) on 28 January 2009.
[2] The application was filed in the Australian Industrial Registry on 23 July 2009. The relief sort by the applicant in her application is not for reinstatement or an amount in relation to remuneration lost but rather the relief is posed as a question:
“Is the Club answerable for their actions.”
[3] Section 643(14) of the Act prescribes:
“An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days”
[4] This application was filed beyond the 21 day time limit prescribed in the Act.
[5] The applicant has requested that the Commission exercise its discretion under s.643(14) of the Act to extend the time for filing this application.
[6] In response, the respondent has indicated that it objects to this application being made which as will be seen is the second application in this jurisdiction.
[7] As a consequence I wrote to the applicant and respondent in identical terms explaining the situation as set out above. I further explained that pursuant to s. 648(2) of the Act I had decided not to hold a hearing and that the applicant and respondent were invited to provide further information that related to whether the extension of time should be granted by the Commission.
[8] Both parties have sent letters to the Commission in response to this correspondence. The respondent’s information includes a statement of its concern regarding the ongoing costs to it of responding to the applicant.
The Extension of Time Application
Principles
[9] The decision of Mr Justice Marshall of the Industrial Relations Court of Australia in Brodie-Hanns v MTV Publishing Ltd 1sets out relevant principles for the Commission when considering whether or not to extend the time within which an application may be lodged. These principles where summarised as follows by Marshall J at 299:
(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.
The Applicant’s Explanation for the Delay
[10] The applicant’s letter to the Commission arguing for an extension of time to lodge this application explained as follows:
- She was advised originally to lodge her application in the Western Australian Industrial Relation Commission (WAIRC) and did so.
- She attended a conciliation conference in the WAIRC on 14 April 2009 and was advised she was in the wrong jurisdiction.
- She lodged an application in this jurisdiction the next day on 15 April 2009.
- On 22 May she received an order issued by Deputy President McCarthy that day dismissing her application (PR987120).
- On 9 July 2009 she attended a further conciliation conference in the WAIRC and was advised that they did not have jurisdiction and she should file in this jurisdiction.
- On 23 July 2009 she lodged this application.
Applying the Principles
Was there an acceptable explanation for the delay?
[11] In this instance there is an explanation for the majority of the delay. The applicant is self represented and clearly does not understand the requirements of the legislation.
[12] That however is a matter for her. It is up to each applicant in any jurisdiction to decide whether they will represent themselves with the consequential disadvantages this involves or seek professional representation.
[13] The applicant’s explanation however does not provide any reason as to why this application was not lodged until two weeks after she had been advised by the WAIRC she was in the wrong jurisdiction and should apply here.
[14] This was the applicant’s second application in this jurisdiction. The order of Deputy President McCarthy in its opening paragraphs explained that the Act imposes statutory time limits and the order dealt with an extension of time question.
[15] Whilst I accept there is an explanation for the delayed lodgement up to 9 July 2009 there is no explanation for the two week period of delay after this.
[16] In the context of the applicant having previously lodged an application here and also having the benefit of the information in the previous order of the Commission, I do not believe there is an acceptable explanation for the full period of delay in this case.
Was the termination otherwise contested?
[17] I accept that the previous applications demonstrate the termination was contested.
Would the respondent be prejudiced if an extension is granted?
[18] There was no information provided by the respondent to suggest any prejudice.
What are the merits of the substantive application?
[19] On the basis of the application as lodged which seeks a remedy that is not within jurisdiction I find that the application has little merit.
Consideration of fairness between the applicant and other persons
[20] The presumption is always against the grant of an extension of time however there is nothing particular known about the respondent’s position that causes this issue to be a significant factor in this instance. I do not find that the consideration of fairness between the applicant and other persons in a like position is of relevance in this matter.
Conclusions
[21] In all the circumstances I am not satisfied that there was an acceptable explanation for the delay in this instance but do find that the applicant actively contested her termination. I find that there is no known prejudice to the respondent should an extension of time be granted and I find that the issue of merit does weigh against the extension of time application. The question of the consideration of fairness between the applicant and other persons in a like position is not relevant in this instance.
[22] Accordingly having considered the information filed by the parties, the materials provided in the original application and applying the principles set out in Brodie-Hanns v MTV Publishing Ltd, 2 I am not satisfied that I should exercise my discretion in favour of allowing the extension of time.
[23] An appropriate order will issue to this effect dismissing the application.
COMMISSIONER
1 (1995) 67 IR 298
2 Ibid
Printed by authority of the Commonwealth Government Printer
<Price code A, PR989103, [2009] FWA 231>
0
1
0