Mrs Irene McCabe v LTF Holdings Pty Ltd ATF Runaway Bay Dental Care Trust & Will Dear Dental Pty Ltd ATF W N Dear Family Trust T/A Runaway Bay Dental Care

[2014] FWC 5085

[2014] FWC 5085

FAIR WORK COMMISSION

DECISION

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

Mrs Irene McCabe
v
LTF Holdings Pty Ltd ATF Runaway Bay Dental Care Trust & Will Dear Dental Pty Ltd ATF W N Dear Family Trust T/A Runaway Bay Dental Care
(U2014/7031)

COMMISSIONER SIMPSON BRISBANE, 31 JULY 2014

Jurisdictional Objection out of time - no exceptional circumstances - application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mrs Irene McCabe (“the Applicant”) who alleges that the termination of her employment with LTF Holdings Pty Ltd ATF Runaway Bay Dental Care Trust & Will Dear Dental Pty Ltd ATF W N Dear Family Trust T/A Runaway Bay Dental (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[2] The application was filed on the 5 May 2014. The Respondent filed a Form 3 Employer’s Response to Application for Unfair Dismissal Remedy making a jurisdictional objection on the basis that the Applicant had failed to make the Application within 21 days as the dismissal took effect on 11 April 2014 and the Application was filed on 5 May 2014. Therefore the Application was 3 days out of time.

[3] At the Directions hearing set down Tuesday 24 June 2014 it was agreed by both the Applicant and the Respondent that in the event that neither party requested a hearing by 10am Monday 28 July 2014 then the Commissioner would deal with this matter on the papers. No correspondence was received by the parties seeking a hearing so I have proceeded to deal with the matter as proposed.

CONSIDERATION

[4] Section 394 of the Act reads as follows:

394 Application for unfair dismissal remedy

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

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

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

(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] It is common ground that the applicant commenced employment on 23 May 2012 and was terminated on Friday 11 April 2014 by Mr Sagnelli in a face to face meeting. The applicant was provided a letter of the same date confirming what the applicant had been advised orally. The application was filed on Monday 5 May 2014. The last day that the application could have been filed within time was Friday 2 May 2014. Therefore the application was filed on the third day after the last day it could have been filed within time.

[6] The applicant stated that after her dismissal she felt embarrassed, humiliated and suffered a loss of confidence and it took her a while to mention the matter to her family as she had never been dismissed before.

[7] It appears from the applicants submission what triggered her decision to file an unfair dismissal application was a conversation on Saturday 3 May 2014 with a family member who works in the area of human resources. This conversation was the day after the last day the application could have been filed within the statutory time limit. The applicant said the conversation gave her cause to believe she had a legitimate claim for unfair dismissal on the basis that her dismissal was procedurally unfair.

[8] The applicants written submission states that on looking at the Fair Work Commission website the applicant believed that Saturday 3 May 2014 was the 21st day after her dismissal, and because that was a weekend it was acceptable to file on the following Monday. This is incorrect in that the 21st day after her dismissal was Friday 2 May.

[9] None of the reasons for delay set out above fall within the meaning of the term “exceptional circumstances” found in s.394(3) of the Act. It is clear the applicant was immediately made aware of her dismissal as it was communicated to her directly. The applicant took no action to dispute her dismissal until the day after the time limit had expired. Both s.394(3)(d) and (e) are neutral considerations in this matter. I am aware of material dealing with the substantive matter including correspondence from Dr Norman however as there are factual disputes concerning these matters it would not be appropriate to give weight to the question of the merits either for or against extending time. Section 394(3)(f) has no particular relevance to the facts in this case.

[10] Having considered all the matters required under the Act I am not satisfied there are exceptional circumstances justifying an extension of time in this case and on that basis the application must be dismissed.

COMMISSIONER

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