Mrs Khaleda Botris v Inghams Enterprises Pty Limited

[2013] FWC 2937

[2013] FWC 2937

FAIR WORK COMMISSION

DECISION

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

Mrs Khaleda Botris
v
Inghams Enterprises Pty Limited
(U2013/6339)

COMMISSIONER CARGILL SYDNEY, 13 MAY 2013

Termination of employment - Extension of time.

[1] This decision arises from an application by Mrs K Botris (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of the termination of her employment by Inghams Enterprises Pty Limited (the respondent or the company). The application appears to have been made outside the statutory time limit. The respondent has lodged an objection to the application and seeks to have it dismissed.

[2] The matter was heard as part of the Sydney jurisdictional matters roster on 3 May 2013. The applicant represented herself and had the assistance of a Chaldean interpreter provided through the Fair Work Commission (FWC). The respondent was represented by Mr Story a Human Resources Business Partner with the company.

[3] The applicant gave sworn evidence and adopted her statement dated 2 April 2013. That statement was marked as Exhibit Applicant 1. Evidence was given on behalf of the respondent by Ms S Beaver, also a Human Resources Business Partner with the company. Ms Beaver gave sworn evidence and adopted her statement dated 19 April 2013.

FACTS AND EVIDENCE

[4] The applicant’s evidence is that she arrived in Australia in 1994 as a refugee from Iraq. English is not the applicant’s first language. Although she presented in the hearing as speaking and understanding English to a degree, from time to time she required the assistance of the interpreter as mentioned earlier.

[5] The applicant began her employment with the company in August 1996. During the period of her employment she worked in the boning and then the cut up sections. The applicant suffered a number of injuries during the course of her employment for which the company accepted workers compensation claims.

[6] The applicant says that she was placed on permanent light duties in 2009. She has been absent from work since 1 June 2010 as a result of her medical situation and remains under the care of her doctor.

[7] On 27 November 2012 Ms Beaver wrote to the applicant about her ongoing employment. In that letter Ms Beaver referred to various medical reports and certificates and stated that the company was considering terminating the applicant’s employment based on her ongoing inability to perform the inherent requirements of her job. The applicant was asked to provide the company with any further information relevant to that consideration.

[8] Ms Beaver received a letter in response, dated 4 December 2012, from the applicant’s workers compensation solicitor. That response provided an update on the workers compensation claim. Ms Beaver’s evidence is that no further information about the applicant’s medical condition or fitness for work was provided by either the applicant or her solicitor.

[9] The applicant’s evidence is that she spoke to the Plant Manager as requested in the letter of 27 November. She informed him that she was continuing to provide medical certificates and asked what else she could do.

[10] On 10 December 2012 Ms Beaver wrote to the applicant advising her that her employment had been terminated. She advised the applicant that she was being provided with five weeks notice and that her employment would cease effective 15 January 2013. Ms Beaver noted that a separation certificate would be posted to the applicant.

[11] It is Ms Beaver’s evidence that her letter of 10 December 2012 was sent to the applicant by express post. Although the applicant was unable to recall the exact date that she received this letter she agreed that it was around 10 December. The applicant’s evidence is that, at that time, she understood that her employment was to end on 15 January 2013.

[12] A separation certificate dated 22 January 2013 was provided to the applicant. The certificate notes that the applicant’s employment ceased on 19 January 2013. It is Ms Beaver’s evidence that she provided a copy of the letter of 10 December to the company’s payroll section. An employee in that section completed the separation certificate. Ms Beaver’s evidence is that she thinks the reference to 19 January in the certificate is the result of a typographical error.

[13] The applicant says that, because the separation certificate was the last document she received from the company, she believes that the date of her dismissal was 19 not 15 January.

[14] The applicant’s evidence is that, after she received the letter from the company, she had spoken to her union and her workers compensation solicitor about what she could do. She also called a number of bodies including Legal Aid. The applicant’s evidence is that on 8 February 2013 she rang FWC and made an unfair dismissal claim by telephone.

[15] The 8 February claim form contains only the names and contact details of the applicant and the respondent. The applicant says that she responded to each of the questions asked by the FWC representative during the telephone call on 8 February. The applicant’s evidence is that the representative stated that the application form would be sent to the applicant to complete the rest of the information. That form with various attachments was returned by the applicant on 21 February.

[16] A letter from FWC to the applicant dated 11 February 2013 notes that the credit card provided for the filing fee when the telephone application had been made had been declined. Internal computer records indicate that the fee was paid by credit card on 13 February 2013.

[17] The production facility where the applicant had been employed closed on 3 May 2013. The announcement of the closure was made on 4 February 2013. The applicant’s evidence is that the closure had been planned for a long time.

APPLICANT’S SUBMISSIONS

[18] The applicant submitted that her application had not been made out of time. The last document which she received from the company, the separation certificate, showed the date of termination as being 19 January 2013. The applicant submitted that should be considered as the relevant date.

[19] The applicant submitted that there was merit in her claim. She had been a loyal and hard working employee and it was not fair that she was dismissed at a time which resulted in her missing out on the redundancy package she would have received when the plant closed.

RESPONDENT’S SUBMISSIONS

[20] The respondent provided a written outline of submissions prior to the hearing. Mr Story also made oral submissions.

[21] The respondent submits that the applicant’s original application was three days out of time and notes that the claim was made nearly two months after the applicant had been notified of her impending dismissal. Mr Story submitted that the applicant had agreed that she had received the letter of 10 December 2012 and had understood that the date of termination was to be 15 January 2013. The date of 19 January on the separation certificate was merely the result of an administrative error and didn’t change the effective termination date.

[22] The respondent submits that, in any event, the application of 8 February was not properly made as it contained only the names and contact details of the parties. The respondent notes that a completed application was not filed until 21 February 2013 which was 37 days after the termination had taken effect.

[23] The respondent submits that there are no exceptional circumstances in this case which would found the exercise of discretion to extend the time for lodgement. Reference is made to the consideration of the term “exceptional circumstances” in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 @ [13] (Nulty). The respondent submits that the onus is on the applicant to satisfy me that the discretion should be exercised: Brisbane South Regional Health Authority v Taylor [1996] 176 CLR 541 and Ajaz Mohammed v Veolia Transport (NSW) Pty Ltd [2013] FWC 1774.

[24] The respondent submits that the applicant has advanced no proper reason for the delay. Mr Story submitted that the real reason was the applicant’s discovery that the plant was closing. The respondent submits that the applicant became aware of the dismissal five weeks before the date of effect. The applicant took no other action to dispute the dismissal.

[25] The respondent submits that it would be prejudiced if the time for lodgement was extended. It is now several months since the date the applicant was informed of the dismissal. Further, the applicant’s position no longer exists as the plant has closed.

[26] The respondent submits that the applicant’s claim is without merit. The applicant has been unfit for work since June 2010 and the most recent medical information indicated that she remained unfit for employment for the foreseeable future. There was a valid reason for the applicant’s dismissal and the process followed in effecting the dismissal was fair.

CONCLUSIONS

[27] Section 394(3) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period FWC allows under subsection (3). That subsection is in the following terms:

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

[28] The Full Bench in Nulty reviewed the authorities on “exceptional circumstances” and provided a very useful summary at paragraphs 13 to 15 of its decision. I adopt and follow the approach of the Full Bench in this regard.

[29] As indicated earlier, the respondent’s position is that the applicant’s employment ended on 15 January 2013. Consequently, on its case, the 8 February application is three days out of time. The respondent also says that this application was not properly made and that the date of lodgement of the claim is actually 21 February 2013, 16 days late. The applicant’s position is that the date of dismissal was 19 January and therefore her claim is within time. Although not specifically argued as such, the applicant’s case is that the 8 February application is valid.

[30] I accept that the date of termination was 15 January 2013 and that the reference to 19 January in the separation certificate was an error. It follows that the claim is out of time. However, in particular circumstances, it was entirely reasonable that the applicant formed the view that the relevant date was that which appeared on the last document she received from the company. In my view that amounts to a satisfactory reason for the delay in lodgement until 8 February.

[31] The next question is whether the 8 February claim was properly made or whether the application was not made until 21 February. As stated earlier, the 8 February claim was made by telephone. Rule 14 of the Fair Work Rules (the Rules) permits unfair dismissal claims to be made by telephone provided that the application fee is paid and the applicant signs and returns the written application. I note that the application fee was not paid until five days after the telephone claim because the credit card provided by the applicant had been declined. In this regard, I am prepared to exercise my powers under Rule 4 of the Rules to dispense with compliance with Rule 14(a). The applicant returned the signed and completed form on 21 February 2013.

[32] The applicant’s unchallenged evidence is that, during the telephone conversation with the FWC representative on 8 February, she answered all of the questions she was asked. She says, and I accept, that she was told that the form would be sent to her to complete and return. I note that there is nothing on the file to suggest that the applicant had refused to provide relevant details. Clearly by its very nature an application lodged by telephone could not be signed. I accept that the claim of 8 February was properly made.

[33] The applicant became aware of the dismissal before, not after, it took effect. It appears that the applicant did not take any action to dispute the dismissal after she received the letter of 10 December 2012 although she did contact the Plant Manager as requested in the letter of 27 November.

[34] I accept that the respondent will suffer some prejudice if the time is extended.

[35] I have not formed any concluded view in relation to the merits of the substantive application. I have noted the competing submissions of the parties in this regard, however, in view of the limited material before me I am prepared to accept that the application is not without merit.

[36] There was nothing put to me which satisfies me that the issue of fairness as between the applicant and others in a similar position has any particular relevance in this matter.

[37] I have taken into account each of the factors set out in paragraphs (a) to (f) of section 394(3). I am satisfied that, taken as a whole, there are exceptional circumstances in this case which are sufficient to justify the exercise of my discretion to extend the time for lodgement to 8 February 2013.

COMMISSIONER

Appearances:

K Botris, the applicant.

D. Story on behalf of Inghams Enterprises Pty Limited

Hearing details:

2013.

Sydney.

May 3.

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<Price code C, PR536530>