Miss Suzanne Polain v St Vincent De Paul Society (SA) Inc T/A Vincentian Centre

[2013] FWC 2273

[2013] FWC 2273

FAIR WORK COMMISSION

DECISION

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

Miss Suzanne Polain
v
St Vincent De Paul Society (SA) Inc T/A Vincentian Centre
(U2013/5769)

COMMISSIONER STEEL ADELAIDE, 12 APRIL 2013

Termination of employment - Extension of time.

[1] The applicant Ms Suzanne Polain made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) asserting she was unfairly dismissed by the respondent, St Vincent De Paul Society (SA) Inc on the 30 November 2012. That application was made on 21 January 2013. Accordingly the respondent has made a jurisdictional objection, as the application was not lodged within the statutory time limit pursuant to s.394(2) of the Act. At the time of the applicant’s dismissal that time limit was fourteen days.

[2] The Commission has been therefore required to consider whether an extension of time should be granted pursuant to s.394(3) of the Act to allow the application to proceed.

[3] The applicant has been employed since October 2010 in a relieving capacity on a casual basis. Her hours of work were varied depending on the absence for various reasons of other employees. Her evidence is that in her employment capacity she may receive no hours per fortnight or up to forty-six hours per fortnight of work.

[4] In these matters the Commission is required to consider the particular factors specified within s.394(3) of the Act. I now turn to those factors as they relate to the application.

S.394(3)(a)

[5] In sworn testimony the applicant provides two reasons for the delay in her lodging the application. Firstly, that she was hospitalised for a hip problem between 9 and 12 December 2012 and had to subsequently rest at home with limited movement. Further, that her illness affected her ability to attend to a computer or to sit for long periods of time.

[6] Secondly, that she was endeavouring to obtain a separation certificate from the respondent and there was a significant delay in her obtaining that certificate. The applicant was of the view she required such certificate to complete her application to the Commission. The applicant submitted that she thought she had read this requirement on the Fair Work Commission (FWC) website information resource on unfair dismissal. The applicant also advised that she had consulted with personnel of the “Noarlunga Legal Service” regarding her dismissal prior to 15 December 2012.

[7] The respondent noted there were various methods available to the applicant to file an application or have someone do such on her behalf and that the length of the delay was significant in face of the available information on the time limit. Further, that no exceptional circumstances had prevailed to invoke the discretion of the Commission to extend the time limit and allow the application.

[8] The Commission is guided by the reference to the meaning of exceptional circumstances within various decisions. Notably the decision of Whelan C (as she then was) in the matter of Parker v Department of Human Services. 1 Taking that definition into account and considering the above on the balance of probabilities the Commission finds that the applicant was aware of the time limit and she had options available to her to lodge an application within time. Further that the FWC web resources and documentation do not contain any direction to provide a separation certificate with an application for unfair dismissal and hence she was mistaken in her belief for some reason.

S.394(3)(b)

[9] The Commission finds the applicant became aware of her dismissal by telephone on 30 November 2012 and it was confirmed by letter of that date.

S.394(3)(c)

[10] The applicant took no action to dispute her dismissal other than her filing of the application despite having advice from a legal service prior to 15 December 2012.

S.394(3)(d)

[11] There is no prejudice to the respondent as noted by the parties.

S.394(3)(e)

[12] The Commission, given the available information from the applicant that she was an irregular casual, working subject to the absence of other employees, has concluded her case for unfair dismissal had little prospects of success if it was pursued.

S.394(3)(f)

[13] The Commission has concluded this factor has little relevance in the circumstances.

Conclusion

[14] The Commission finds that the applicant’s circumstances and actions, taking into account the factors within s.394(3), do not meet the requirements to be considered “exceptional circumstances.” Hence it is not appropriate to exercise the discretion to extend the time for this application.

[15] Accordingly the application for an extension of time must fail and the applicant’s claim against the respondent is dismissed. An order to that end will be issued.

COMMISSIONER

Appearances:

Miss S Polain in person

Mr M Wockel for the respondent

Hearing details:

Adelaide

2013:

April 12

 1   [2009] FWA 1638

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