Mrs Lynette Susan Davies-Claughton v Crystal's Lunch Vans
[2011] FWA 2377
•3 MAY 2011
[2011] FWA 2377 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Lynette Susan Davies-Claughton
v
Crystal's Lunch Vans
(U2011/4437)
COMMISSIONER HAMPTON | ADELAIDE, 3 MAY 2011 |
Application for unfair dismissal remedy - extension of time for lodgement - whether exceptional circumstances exist to warrant an extension.
[1] The matter arises in the context of an application made by Mrs Lynette Davies-Claughton (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The respondent employer is Crystal’s Lunch Vans (the respondent or the employer).
[2] The applicant was dismissed by the respondent on 7 January 2011 and this application was lodged with Fair Work Australia on 27 January 2011. The applicant has sought an extension of time to permit the matter to be lodged beyond the 14-day period nominated by s.394(2) of the Act.
[3] The unfair dismissal matter has not been subject to conciliation and the respondent opposes the extension of time being granted. The file has been assigned to me to deal with the extension of time application.
[4] Given the relevant provisions of the Act, and the existence of factual disputes, I have now heard further from the parties and received evidence pertaining to the extension of time application. 1
[5] The applicant, who was not separately represented, contends that she approached Fair Work Australia on 10 January 2011 and requested that forms for her to lodge the unfair dismissal application be sent to her home. As I understand it, the applicant further contends that these did not arrive at her correct home address and that on or about 20 January 2011, she again contacted Fair Work Australia and requested that they be faxed to her new workplace, which was done.
[6] The applicant also contends that she needed to obtain a cheque to pay the application fee and this created a further delay and that at no time was she aware of the need to lodge the application within the 14-day period.
[7] The applicant gave evidence in the matter and was provided with the opportunity to subsequently supply, or confirm the date of receipt of, the faxed version of the application form said to have been received from Fair Work Australia on or about 20 January 2011. An opportunity to confirm the source of the application form actually lodged with Fair Work Australia was also provided to the applicant. 2
[8] The respondent was represented by its owners and managers, Mr and Ms Elmasri, and they contended that there was no satisfactory explanation provided for the delay in filing the application and that the substantive application was without merit and should be dismissed.
THE STATUTORY CONTEXT
[9] Section 394 of the Act in dealing with applications for a remedy in relation to dismissals provides relevantly as follows:
“….
(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.”
[10] Section 396 of the Act relevantly provides that Fair Work Australia must determine whether the application was made within the period required by s.394(2), which includes the potential extension to the 14-day period, before dealing with the merits of the application.
CONSIDERATION
[11] The dismissal of the applicant was effective and communicated to her on 7 January 2011 and the unfair dismissal application was lodged with Fair Work Australia on 27 January 2011. It was post marked 25 January 2011.
[12] Section 394(2) of the Act provides a 14-day period within which to lodge an unfair dismissal application. The period is defined as being 14 days after the dismissal took effect and the 14-day period is exclusive of the day of the event, in this case, the dismissal. 3
[13] On that basis, this application was filed on the 20th day after the dismissal took effect and accordingly an extension of time of some six days is required if the substantive unfair dismissal application is to be heard.
[14] Section 394(3) of the Act provides Fair Work Australia with discretion to extend the time for lodgement beyond the 14-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take account of the considerations outlined in paragraphs (a) to (f) of s.394(3) of the Act. I have done so in this matter.
[15] In the immediate lead up to the hearing of this matter, my office provided written details of the relevant provisions of the Act to each of the parties and advised them as to the general nature of the extension of time hearing.
[16] In terms of the material and evidence before Fair Work Australia, much of the material concerns the substantive application and a further potential preliminary point that only arose during the course of the hearing. I have not placed weight upon that material except to the extent that it casts any light upon the considerations established by s.394(3) of the Act.
[17] I found the applicant’s evidence to be unconvincing in a number of respects. The sequence and details of events given in evidence were confusing and incomplete and I am left in doubt as to some of those matters. The respondent did not lead evidence however little turns on that given the nature of the considerations in s.394 as applied in this case.
[18] It is against this background that I have assessed the various considerations cited by the Act.
[19] Although the statutory discretion requires the considerations relating to the existence of exceptional circumstances to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act.
The reason for the delay
[20] I have earlier outlined my reservations with the evidence of the applicant concerning the facts leading to the lodgement of the application and as a result there are significant gaps in the explanation of the delay. I am reluctant to place weight upon that explanation in the absence of any objectively demonstrated facts or independent evidence.
[21] Even if I were to assume that the officer from Fair Work Australia that apparently spoke to the applicant on the two occasions did not make mention of the 14-day time limit, and that the applicant did await the second version of the application, the applicant did not follow-up the original request for some ten days and then took some additional days before posting the application. There is some apparent explanation for elements of this delay, including the need to obtain payment for the filing fee and the earlier incorrect address said to have been initially used by Fair Work Australia.
[22] In any event, the applicant’s evidence regarding the sequence of events was not clear or consistent and does not provide a satisfactory explanation for the delay.
When the person first became aware of the dismissal after it had taken effect
[23] The applicant was dismissed on 7 January 2011 and she was aware that it had taken effect immediately.
[24] This fact is a consideration that does not assist the applicant with a finding of exceptional circumstances.
Any action taken by the person to dispute the dismissal
[25] This consideration is clearly related in this case to the reasons for the delay as discussed above.
[26] On face value, the apparent approach to Fair Work Australia on 10 January 2011 does show a desire to expeditiously pursue the matter however elements of the subsequent delays do not sit well with that intent.
Prejudice to the employer (including prejudice caused by the delay)
[27] The respondent has not indicated any specific prejudice arising from the delay. The absence of demonstrable prejudice is a relevant consideration 4 however the absence of such prejudice is also not in itself a reason to grant an extension.5
The merits of the (unfair dismissal) application
[28] The consideration of the merit of the application in this context is limited to the prima facie merits. 6
[29] The respondent contends that the applicant was dismissed on the basis of alleged theft and fraud and has provided a number of statements which appear to support that proposition. These statements are however completely untested and the applicant has denied that she misappropriated the money/products in question.
[30] The respondent is apparently a small business for the purposes of the unfair dismissal jurisdiction of the Act (less than 15 employees) 7 and it does have a strong case that it has complied with the Small Business Fair Dismissal Code as established by s.388 of the Act. That is, the employer believes on reasonable grounds that the applicant’s conduct was sufficiently serious to justify immediate dismissal and would appear to have reasonable grounds for that belief.8 The respondent also contends that it sought an explanation of the missing funds/products and took steps to verify (audit) the lunch van involved and if this can be demonstrated by evidence, it may also be that the dismissal was not unfair within the meaning of the Act.9 However, there is also presently insufficient material before the Tribunal to make a ruling on these issues.
[31] The applicant’s principal concern is that an amount of money, being $335.80, was deducted by the respondent from her final pay. This apparently equates to the missing stock/takings alleged by the respondent. The applicant has indicated that the refund of this amount is the outcome sought in these proceedings. I do note that the applicant may well have a cause of action to seek the recovery of the amounts deducted from her wages. 10 If the applicant wished to pursue an underpayment of wages claim, this would be a matter for a Court of competent jurisdiction and is not impacted by the making and disposition of this application.11
[32] There is also a dispute between the parties as to the length of the applicant’s employment. The applicant claims to have been employed since May 2008 in this and an apparently related business, whereas the respondent contends that the service with this business is less than 12 months. If the respondent is correct, the applicant may not be eligible to apply in any event given the impact of s.383 of the Act. 12 This dispute was not apparent until during the hearing of this matter and as a result there is also insufficient material to determine this aspect.13
[33] Accordingly, it is sufficient for present purposes to note that there are a number of significant potential jurisdictional hurdles that the applicant would need to succeed upon in order for the unfair dismissal application to proceed. The applicant does not have a strong case on the merits of the unfair dismissal matter although it cannot be said that it is completely without merit. The applicant does however appear to have an alternative cause of action open to her to pursue the issue that lies at the heart of her application; namely the money deducted by the respondent upon termination.
Fairness as between the person and other persons in a similar position
[34] This consideration as it applies to other employees of the respondent does not arise in this matter. To the extent that this consideration contemplates the circumstances of employees more broadly, the consistent application of principles adopted by Fair Work Australia in similar matters is in line with this consideration and I have sought to adopt that approach in this matter.
CONCLUSIONS
[35] In the context of the facts of this application and the extension required, and having considered each of the statutory matters, I am not persuaded by the applicant that there are exceptional circumstances as contemplated by s.394(3) of the Act and I decline to extend time.
[36] As a result, there is no jurisdiction for Fair Work Australia to deal with the application and it must be dismissed. An order to that effect has been issued in conjunction with this decision.
COMMISSIONER
Appearances:
LS Davies-Claughton in person.
A and M Elmasri for Crystal’s Lunch Vans.
Hearing details:
2011
Adelaide
14 April
Final written submissions:
2011
15, 18 April.
1 S.397 of the Act permits a matter to be determined without conducting a conference or holding a hearing where there is an absence of factual disputes.
2 The request for the faxed application form was made during the hearing on 14 April 2011 and a reminder was sent to the applicant by my office on 15 April 2011 along with a request for an explanation of the form as filed. The applicant later informed FWA that the original faxed form was the one that was filed. This is at odds with the suggestion given during the hearing that the original facsimiled form had been retained and could be supplied to the Tribunal.
3 S.36 of The Acts Interpretation Act 1901.
4 Brodie-Hanns v MTV Publishing Ltd, (1995) 67 1R 298 at 300, 31 October 1995, per Marshall J.
5 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
6 Although also determined in a slightly different statutory context the decision in H Kyvelos V Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.
7 S.23 of the Act. The applicant accepted that the respondent was likely to be a small business however there is presently no evidence before Fair Work Australia to confirm this fact.
8 The Small Business Code provides as follows:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
9 Section 387 of the Act.
10 S.324 of the Act provides that deductions from wages may only take place in certain circumstances and these do not appear to apply in this case. This is a an issue that may also be pursued by the applicant through the Fair Work Ombudsman.
11 The respondent may also have a claim against the applicant for allegedly misappropriated funds or product however that is beyond the scope of these proceedings.
12 The Act provides minimum periods of employment in relation to an unfair dismissal application. In the case of a small business as defined, that service is 12 months and for all other businesses, six months.
13 There was some material provided to Fair Work Australia after the hearing however this cannot be tested and the Tribunal would need to consider the precise nature and extent of the past service and the relationship between the two business operations apparently involved. There is also an indication that there was a large break in any such “service” that could also lead to a finding that the applicant was not eligible to apply in this jurisdiction and this would also need to be assessed if the matter were to proceed.
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