Mrs Joanne Humes v Centrecare
[2010] FWA 7913
•14 OCTOBER 2010
[2010] FWA 7913 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Joanne Humes
v
Centrecare
(U2010/11882)
COMMISSIONER CLOGHAN | PERTH, 14 OCTOBER 2010 |
Unfair dismissal.
[1] On 25 August 2010, Fair Work Australia received an application from Mrs Joanne Humes (“the Applicant”) alleging that she was unfairly dismissed from her employment at Centrecare (“the Employer”) in Kalgoorlie.
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (“the Act”).
[3] Ms Humes’ application was unable to be resolved at conciliation and subsequently referred to me for arbitration.
[4] Ms Humes was employed, on a casual basis, as a Direct Care Worker from 8 May 2006 until 18 February 2010. As a Direct Care Worker, Ms Humes was responsible for the care of children in the Employer’s Djooraminda facility.
[5] In December 2009, the Employer became aware of an incident which was inconsistent with the Applicant’s role and responsibilities as a carer of children.
[6] Ms Glenda Kickett, for the Employer, sought an explanation for the Applicant’s behaviour on two occasions in December 2009. Subsequently, on 18 February 2010, the Employer formally wrote to the Applicant advising that her employment is terminated with immediate effect; effectively Ms Hume would no longer be offered any further casual employment.
EMPLOYER’S RESPONSE TO APPLICATION FOR UNFAIR DISMISSAL
[7] The Employer advised on 14 September 2010 that:
• Ms Humes’ dismissal was not unfair;
• the application was not filed within 14 days after the dismissal took effect pursuant to s.394(2)(a) of the Act; and
• Ms Humes did not complete the minimum period of employment with the Employer because she was not employed on a regular and systematic basis nor did she have a reasonable expectation of continuing employment on a regular and systematic basis.
[8] For the Tribunal to have jurisdiction, it is necessary, in the first instance, to determine if Ms Humes’ application was filed within 14 days, or such further period as the Tribunal allows, if it is satisfied that there are exceptional circumstances, taking into account the provisions of s.394(3) of the Act.
LEGISLATIVE FRAMEWORK
[9] The relevant provisions of the Act are as follows:
- Section 394 - Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA 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 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) 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.
- Section 396 - Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2); (my emphasis)
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
APPLICANT’S CASE
[10] The Applicant in her application states that although the letter terminating her employment with immediate effect is dated 18 February 2010, she only received it on 23 March 2010. While no reason is offered for the delay in receiving the correspondence terminating her employment, if I assume there is a reasonable explanation for the purposes of this Decision, I am still left with a gap between 23 March and 25 August 2010 when the application was filed; a period of over five months.
[11] Upon being allocated the application for arbitration, I wrote to Ms Humes on 28 September 2010 inviting her to provide any further information on the issues outlined in s.394(3) of the Act, and any other matters she considered relevant, to the delay in filing the application.
[12] Ms Humes responded materially on 6 October 2010 as follows:
“Thank you for your letter of 28/09/10. I feel I have provided all relevant information concerning the reasons for the delay in applying in my original application. I did not receive a definite response from Centrecare for several months, I was given the impression that everything could perhaps be resolved in time, I was grieving for my mother and was perhaps more willing to just wait for them to make up their mind than I should have been. Once I had received notice in writing that my employment had been terminated I took action.”
DISCUSSION AND CONCLUSION
[13] Ms Humes states in her application that she did not receive the Employer’s letter terminating her employment until 23 March 2010. For the purposes of this Decision, I will assume there are exceptional circumstances for the Applicant not receiving the letter of termination until 23 March 2010.
[14] Having received the Employer’s letter terminating her employment, it is necessary to examine what occurred between 23 March 2010 and 25 August 2010.
[15] Firstly, with regard to providing “all relevant information concerning the reasons for delay in the original application”, the original application has minimal information and does not address the “reasons for delay”.
[16] Secondly, I am unable to accept the Applicant’s assertion that, “once I received notice in writing that my employment had been terminated I took action”. By her own admission, Ms Humes received the letter of termination on 23 March 2010 and did not take action, in the form of an application to Fair Work Australia, until 25 August 2010.
[17] Thirdly, the Employer’s letter of 18 February 2010 is unequivocal in its terms that Ms Humes’ employment had been terminated. The letter from Centrecare could not be more definitive of the Employer’s view of the incident on 14 November 2009.
[18] Finally, Ms Humes refers to “grieving for her mother and...perhaps more willing to just wait for them to make up their mind than I should have been”. As I have already stated, the Employer’s mind was resolute as at 18 February 2010. While the death of your own mother is distressing and lenience is generally given to those affected, the Applicant declined to provide any information beyond the fact that she was grieving. Notwithstanding this, a lenient disposition cannot extend to the Applicant to a period of over five (5) months to when the application was made.
[19] Taking into account the ordinary meaning of the provisions of s.394(3) of the Act, in particular s.394(3)(a) and (b), I am satisfied that there are no exceptional circumstances to allow the Applicant a period of time until 25 August 2010 to file the application for unfair dismissal.
[20] Accordingly, an Order to dismiss the application for want of jurisdiction will issue to reflect this Decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR502666>
0
0
0