Mrs Julie Abbott v Focus Press Pty Ltd

[2013] FWC 2405

[2013] FWC 2405

FAIR WORK COMMISSION

DECISION

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

Mrs Julie Abbott
v
Focus Press Pty Ltd
(U2013/5526)

VICE PRESIDENT WATSON SYDNEY, 19 APRIL 2013

Application for unfair dismissal remedy - application for extension of time - Fair Work Act 2009 - s.394.

[1] This decision concerns an application for unfair dismissal remedy by Mrs Julie Abbott pursuant to s.394 of the Fair Work Act 2009 (the Act). The application concerns the termination of Mrs Abbott’s employment by Focus Press Pty Ltd (Focus Press). The application was faxed to the Fair Work Ombudsman by Mrs Abbott on 17 December 2012, but was not received by the Fair Work Commission until 2 January 2013.

[1] The matter was originally listed for conciliation on 5 February 2013 but did not proceed. The matter was subsequently listed for an extension of time hearing, and the respondent further objected to the application on the basis that the termination was due to genuine redundancy.

[2] Mrs Abbott provided a witness statement, explaining that she was notified of her dismissal on 3 December 2012, and faxed her application to “the Unfair office” on 17 December 2012. Mrs Abbott also provided a fax receipt showing that the application had been sent on 17 December 2012. On that basis, she believed her application was within the 14 day statutory time limit. The application was in fact sent to the Fair Work Ombudsman, who did not forward it to the Fair Work Commission until 2 January 2013.

[3] Focus Press provided written submissions opposing an extension of time. Focus Press relies on a letter provided to them by the Commission stating the application had been made on 2 January 2013. Focus Press further submitted that Mrs Abbott’s termination was effective 30 November 2012, not 3 December 2012. Shortly prior to the scheduled hearing, Focus Press appointed Mr John Tamplin of Solutions for the Workplace Pty Ltd to act as their representative.

[4] Following correspondence from chambers, Mr Tamplin indicated that in fact Mrs Abbott’s termination date was 3 December, and that he was of the view that Mrs Abbott mistakenly faxing her application to the Fair Work Ombudsman rather than to the Commission was an exceptional circumstance warranting an extension of time being granted. The hearing was then cancelled and the matter determined on the papers.

[1] The Act provides that an application may be accepted within a further period as allowed by the Fair Work Commission: s.394(2)(b) and that the Fair Work Commission may allow the period to be extended if satisfied that there are exceptional circumstances. The tribunal is also required to take into account a number of factors set out in s.394(3) of the Act in assessing whether exceptional circumstances are present.

[1] I consider there are exceptional circumstances warranting an extension of time for filing. I consider that the date on which the dismissal took effect was 30 November 2012, being the date Mrs Abbott was told she was redundant and finished work. The 14 day time limit ran out on Friday 14 December. She faxed her application the following Monday morning to an incorrect location, believing the Fair Work Ombudsman to be “the Unfair office”. Mrs Abbott believed she was making her application within the statutory time limit and with the correct organisation. Focus Press does not object to an extension of time being granted.

[2] Having regard to all of the circumstances including the factors in s.394(3), I grant an extension of time to 2 January 2013, the date on which the application was received by the Commission. The matter will be referred to the Unfair Dismissals Unit for further conciliation and programming.

VICE PRESIDENT WATSON

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