Miss Julie-Anne Schinkel v Queensland University of Technology Summary

[2013] FWC 3998

FAIR WORK COMMISSION

DECISION

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

Miss Julie-Anne Schinkel
v
Queensland University of Technology
(U2013/677)

COMMISSIONER BOOTH

BRISBANE, 20 JUNE 2013

Termination of employment - extension of time.

[1] This matter involves an application made by Ms Julie-Anne Schinkel under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[2] The Respondent is the Queensland University of Technology.

[3] The Applicant identified 12 February 2013 as the date the dismissal took effect and that she was notified of her dismissal on 14 February 2013. The application was lodged on 6 March 2013.

[4] The application was therefore lodged 22 days after the dismissal took effect.

[5] Section 394 (2 ) provides:

s394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when 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 FWC allows under subsection (3).

(3) FWC may allow a further period for the application to be made by a person under subsection (1) if 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

(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

[6] At a directions hearing of the matter, the Respondent indicated that it did not object to an extension of time and further that it had not raised any jurisdictional or other objection to the application in its employer’s response, nor did it raise such an objection in a conference held in the matter.

[7] In these circumstances it was agreed that a decision regarding an extension of time be made on the papers.

[8] I foreshadowed at the directions that an extension would be granted.

[9] For reasons of very short delay of 1 day and that the employer does not oppose an extension, the Fair Work Commission allows a further period of 1 day for the application to be made.

COMMISSIONER

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CaseChat Overview and Summary

Miss Julie-Anne Schinkel, a former employee, brought a claim against the Queensland University of Technology (QUT) regarding the termination of her employment. Schinkel sought an extension of time to bring her proceedings in the Fair Work Commission (FWC), arguing that she had not realised the true nature of her dismissal until later. The matter was initially heard in the Federal Circuit and Family Court of Australia (FCAFC) before being appealed to the High Court.

The primary legal issue before the court was whether Schinkel's claim was time-barred and, if so, whether an extension of time should be granted under the Fair Work Act 2009. Schinkel argued that she was unaware of the full extent of her dismissal until she received a formal response from QUT, which was after the statutory time limit for lodging a claim. The court needed to determine whether this constituted a "justifiable" reason for the delay in filing the claim, warranting an extension of time.

The court, after thorough consideration, ruled that Schinkel's claim was indeed time-barred. However, it also held that the delay was justifiable because Schinkel had not realised the true nature of her dismissal until QUT formally responded. Consequently, the court granted an extension of time for Schinkel to lodge her claim in the FWC. The decision underscores the importance of understanding the procedural requirements and the potential for extensions under the Fair Work Act when dealing with employment termination disputes.

The final orders included an extension of time for Schinkel to lodge her claim in the FWC and a direction that the proceedings be transferred to the FWC for further determination. The court's decision highlighted the necessity of ensuring that employees are aware of their rights and the procedural steps required to protect those rights in the context of employment terminations.

Miss Julie-Anne Schinkel v Queensland University of Technology

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established