Miss/Lady Merinda Shaw v Nordic Securities Pty Ltd T/A Resources Law International (formerly Pritchard Udovenya)
[2011] FWA 1013
•15 FEBRUARY 2011
[2011] FWA 1013 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss/Lady Merinda Shaw
v
Nordic Securities Pty Ltd T/A Resources Law International (formerly Pritchard Udovenya)
(U2010/14280)
COMMISSIONER ROE | MELBOURNE, 15 FEBRUARY 2011 |
Unfair dismissal - extension of time for lodging application.
[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Lady Merinda Shaw (the Applicant) in respect of dismissal by the Nordic Securities Pty Limited (the Respondent). The Applicant named the Respondent as Nordic Securities Pty Ltd T/A Resources Law International (formerly Pritchard Udovenya). These may have been earlier trading names for the Respondent but the Respondent advised that the Respondent employer of the Applicant at the time of the termination was Nordic Securities Pty Ltd. I am satisfied that this is the case. At the conclusion of the hearing of this matter I advised the parties that I was refusing to allow an extension of time. The following is an edited version of the decision which I issued on transcript on 11 February 2011.
[2] The Applicant appeared for herself. The Respondent was represented by Mr Alden on behalf of Middletons lawyers. I granted leave for him to appear. There was no objection from the Applicant. I asked the Applicant a number of questions in order to understand the reasons for the delay in making the Application. I considered the submissions of the Applicant and the Respondent.
[3] Section 394(2) of the Fair Work Act 2009 (FW Act) provides:
“(2) [Standard time limit] The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).”
[4] Subsection 394(3) provides:
“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[5] The employer says that the applicant was dismissed on 27 May 2010. The applicant says that she was aware of that action within two weeks of 27 May 2010.
[6] I am satisfied that the application was made on 19 November 2010 and I have not received any clear evidence to suggest otherwise. That means the application was made at least 150 days after the time that the applicant became aware of the dismissal and so this is not a case where the application is only a little bit late; this is a case where the application is very significantly late. I do think that that is a relevant factor in determining whether or not exceptional circumstances exist.
[7] The reasons that have been given for the delay by the Applicant are, firstly, that she was in an upset and emotional state and I am certainly satisfied that that was in fact the case. However, the applicant was not hospitalised or physically incapable of putting in the application. I do not believe having considered the evidence in this case that there is sufficient basis to regard the upset and emotional state as being an exceptional or unusual circumstance that could justify the delay in making the Application.
[8] The second reason given relates to not being able to obtain advice. The applicant has said that she did speak to a lawyer, but the lawyer did not wish to assist in respect of this unfair dismissal matter. I do not regard the absence of receipt of advice as being an exceptional circumstance. This is not a case where it is suggested there is some form of representational error. That is, that the delay is due to the actions of the adviser. The delay is due to the actions of the Applicant, not the actions of the adviser, and therefore I do not see how it can constitute exceptional circumstances.
[9] The final reason given relates to the concern that the applicant had that events surrounding the matter might be pursued in another way through the police or as some form of criminal matter. In the absence of any evidence or explanation as to why that would affect the making of an unfair dismissal application, I cannot find that this is an exceptional circumstance. I cannot see why those concerns would prevent the making of an unfair dismissal application. They might affect the actual conduct of the proceedings, should it proceed, in some way. That is conceivable, but I cannot see how it prevented the making of the unfair dismissal application in the absence of further evidence in respect of that matter.
[10] I think it is clear that the applicant did become aware of the dismissal within two weeks of 27 May 2010. It is clear that the Applicant, far from taking action to dispute the dismissal during the period following 27 May and the making of the application on 19 June, in fact sent a resignation letter to the employer, dated 3 June 2010 effective 4 June 2010. The Applicant freely admits this to be the case although she says that her separation certificate and the payments made to her reflect a dismissal at the initiative of the employer on 27 May 2010 rather than a resignation effective 4 June 2010. There is no evidence of other action being taken to dispute the dismissal during the period from 27 May until 19 November 2010. The applicant does say that she may have made some contacts with Fair Work Australia during the period, but the evidence concerning that is not clear. I accept that she contacted the Fair Work Ombudsman or Fair Work Australia prior to her dismissal in early May to raise some query about her employment conditions but this is not relevant to the current Application.
[11] I make no finding about the merits of the application, because I made it clear at the commencement of the proceedings that the proceedings were confined to the issue of the extension of time and it is only in a limited number of cases and circumstances where the merits will be particularly relevant. I do not believe this is a case where it is necessary to consider the merits of the application. I do not have sufficient information to be able to make any comment on the merits of the unfair dismissal application.
[12] I do not think that fairness between the applicant and other persons in a similar position is a relevant consideration in this matter since, as far as I am aware, it is only the applicant whose employment was terminated at this particular time.
[13] Taking all those matters into consideration which are specified in section 394(3) of the Act, I cannot find that there are exceptional circumstances which would justify me granting the extension of time for the application. I refuse the application for an extension of time in this matter and therefore the applicant is unable to further pursue this particular application. The Section 394 Application for unfair dismissal remedy is dismissed. The matter is now concluded.
COMMISSIONER
Appearances:
Ms Shaw representing herself.
Mr Alden for the Respondent.
Hearing details:
11 February
Melbourne
2011
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