Mrs Marie Spargo v Regis Group Pty Ltd T/A Regis Cypress Gardens
[2011] FWA 2087
•6 APRIL 2011
[2011] FWA 2087 |
|
DECISION |
Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute
Mrs Marie Spargo
v
Regis Group Pty Ltd T/A Regis Cypress Gardens
(C2011/3030)
COMMISSIONER CLOGHAN | PERTH, 6 APRIL 2011 |
Application to deal with an unlawful termination dispute.
[1] On 13 January 2011, Mrs Marie Spargo (“the Applicant”) made application to fair Work Australia (FWA) to deal with an unlawful termination dispute in accordance with s.773 of the Fair Work Act 2009 (“the Act”).
[2] Mrs Spargo alleges that she was unlawfully terminated by Regis Group Pty Ltd T/A Regis Cypress Gardens (“the Employer”).
[3] Mrs Spargo was terminated from her employment on 11 June 2010.
[4] At the time of making this application, Mrs Spargo also made application alleging that she was unfairly dismissed by the Employer in accordance with s.394 of the Act. On 18 February 2011, Mrs Spargo gave notice of discontinuing her application alleging that she was unfairly dismissed from her employment.
[5] On 4 April 2011, I convened a conference of the parties in relation to Mrs Spargo’s application. The Applicant’s husband, Mr Spargo, attended the conference with Mrs Spargo.
[6] At the conference, I enquired of Mrs Spargo as to the reason she had filed an application with FWA alleging that she had been unlawfully dismissed over seven (7) months after the date of dismissal and over five (5) months after the time for applications to be filed (60 days).
[7] Mrs Spargo advised that she had previously pursued a discrimination complaint with the Equal Opportunity Commission (EOC).
[8] Further, Mrs Spargo was unaware of the existence of FWA and the ability to make application until just prior to filing the application.
[9] Section 774 of the Act provides:
(1) An application under section 773 must be made:
(a) within 60 days after the employment was terminated; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the employee to dispute the termination; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[10] Having heard the views of Mrs Spargo, I am not satisfied that there are exceptional circumstances to grant an extension of time to 13 January 2011 to file the application.
[11] Mrs Spargo has a right under the Act to make application alleging unlawful termination of employment. In exercising that right, the Act has also ascribed a responsibility on Mrs Spargo to exercise that right within 60 days. The policy position of Parliament is to fix a statutory deadline of 60 days in which something should be done by aggrieved persons. Parliament has also provided a “safety valve” for exceptional circumstances. For the Tribunal to accept that the reason for the delay, that Mrs Spargo only became aware of the provisions just prior to filing the application constituted exceptional circumstances, would render the statutory timeline irrelevant and self determining when applicants could institute proceedings. Such an approach is not consistent with exceptional circumstances provisions in the Act and would leave all employers with ongoing uncertainty.
[12] In conclusion, having considered the information provided by Mrs Spargo, the statutory provisions and the Employer’s submission, I did not consider it appropriate to extend the time to lodge the application by the Applicant in accordance with s.774(1)(b) of the Act.
[13] The application is not competent in accordance with s.774(1) of the Act and accordingly fails for the want of jurisdiction due to being filed out of time; an Order is issued to this effect.
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