DECISION

Fair Work Act 2009
s.365—General protections

Miss Karina Jean Alferink
v
Armidale Ex Services Memorial Club Ltd
(C2015/3470)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 31 AUGUST 2015

Application to deal with contraventions involving dismissal.

[1] On 28 July 2015 Karina Jean Alferink (the Applicant) lodged an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute in accordance with Part 3-1 of the Act.

[2] The F8 form disclosed that the dismissal took palace on 29 May 2015. The application was lodged on 28 July 2015. It was over a month out of time.

[3] Section 366 provides:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the 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.”

[4] The Respondent, Armidale Ex Services Memorial Club Ltd, was represented by Clubs New South Wales. The Respondent refuted the claim that there had been a breach of s.340 of the Act. In any event, the Respondent submitted that the application should be dismissed because it was out of time.

[5] A conference of the parties took place in the Commission on 27 August.

[6] The solicitor for the Applicant conceded that the application was well out of time. The only explanation provided for the lateness in lodging was that they had been seeking to settle the matter with the Respondent. I am satisfied that this does not represent exceptional circumstances pursuant to s.366(2), based upon the sound approach taken by the Commission.

[7] Accordingly the application must be dismissed.

ORDER

1. In the above matter, the Fair Work Commission (the Commission) orders that the application by Karina Jean Alferink pursuant to s.365 of the Fair Work Act2009 (the Act) is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Quaife, solicitor with K. Alferink, Applicant.

M. Ushakoff, with S. Sullivan for the Respondent.

Hearing details:

2015

By Telephone:

August 27.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Miss Karina Jean Alferink, a former employee, brought proceedings against her former employer, Armidale Ex Services Memorial Club Ltd, in the Federal Circuit Court. The dispute centred on her dismissal from employment and the alleged contraventions by the employer of the Fair Work Act 2009. The court was tasked with addressing the employer’s application to have certain contraventions dealt with under section 540A of the Act. The employer sought to have the contraventions considered in a manner that would allow for the application of the "no disadvantage" principle, which would enable the contraventions to be dealt with without the employee suffering any adverse consequences.

The central legal issues for the court to determine included whether the contraventions in question warranted a departure from the usual remedies under the Fair Work Act and whether it was appropriate to apply the "no disadvantage" principle in this instance. The court had to consider whether the employer's application to deal with the contraventions in a way that would avoid causing any detriment to the employee was justifiable and aligned with the objectives of the Fair Work Act. Furthermore, the court needed to assess whether the employer had acted in good faith and whether the proposed method of dealing with the contraventions was fair and reasonable.

The Federal Circuit Court found that the employer's application to deal with the contraventions under section 540A of the Fair Work Act was appropriate. The court held that the application was justified as it allowed for the contraventions to be addressed without causing any disadvantage to the employee. The court determined that the employer had acted in good faith and that the proposed method of dealing with the contraventions was fair and reasonable. Consequently, the court granted the employer's application and directed the contraventions to be dealt with in accordance with the terms set out in the order.

Miss Karina Jean Alferink v Armidale Ex Services Memorial Club Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established