Mrs Melanie Kynion v Price Sierakowski Pty Ltd T/A Price Sierakowski Corporate
[2010] FWA 8469
•3 NOVEMBER 2010
[2010] FWA 8469 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Melanie Kynion
v
Price Sierakowski Pty Ltd T/A Price Sierakowski Corporate
(U2010/11569)
DEPUTY PRESIDENT MCCARTHY | PERTH, 3 NOVEMBER 2010 |
Application for unfair dismissal remedy - earlier application lodged within time discontinued - applicant acted on advice from FWA - extension of time.
Introduction
[1] This application was lodged on 16 August 2010, by facsimile by Mrs Melanie Kynion (the Applicant). The application states that the termination of employment took effect on 13 August 2010. The Employer’s Response to the application appears to have been lodged on 20 September 2010. A conciliation conference was held on 21 September 2010. On 22 September 2010, an Objection to Application for Unfair Dismissal Remedy (the Objection) was lodged. The grounds of the Objection state that:
“The Application for Unfair Dismissal Remedy was lodged with Fair Work Australia outside of the prescribed 14 day time limit, as outlined below:
On 19 July 2010 the Applicant was advised that her employment was terminated with four (4) weeks' notice;
Shortly after, the Applicant requested that she be allowed to finish earlier citing the reason that her husband had obtained full-time employment and thus she was required to look after their children;
The Respondent agreed to the Applicant’s request to shorten the notice period. It was agreed that the Applicant's employment would conclude 30 July 2010;
The dismissal took effect 30 July 2010 and the Applicant was paid for service up to this date;
The Application for Unfair Dismissal Remedy was lodged 16 August 2010, outside of the prescribed 14 day time limit.”
[2] On 23 September 2010, the application was allocated to me. As it appeared to me that the application may have been lodged outside the time allowed I wrote to the Applicant seeking confirmation that the application was not lodged within the 14 days of the termination of employment. I also requested that an explanation be provided as to what exceptional circumstances there are such that I should allow the application if the application was lodged outside the time allowed.
The Applicant’s Contentions
[3] The Applicant sent an email on 8 October 2010 in response to my request. She explained the circumstances as follows:
“My employment was terminated on 19 July 2010.
I contacted Fair Work shortly after and was advised of the date range in which I should file my application. An application was prepared and lodged with Fair Work on 11 August 2010 (the earlier application). 1
On 13 August 2010 I was contacted by [name of FWA officer] who said that my application was lodged too early. He then requested that I complete a Notice of Discontinuance and lodge that with Fair Work withdrawing the application and relodging on 16 August 2010 (allowing for the weekend). I filed a Notice of Discontinuance and was then advised it had never been received (this was lodged at my local post office and at the time I had positive confirmation of it being sent). The next day I was then requested to resend the Notice of Discontinuance which I did. I followed up in the afternoon only to be told a second time it was never received. I went back to the post office who confirmed that it did go through successfully. I then contacted Fair Work again who said that they had actually found both copies of my faxes in the end.
During my discussion with [name of FWA officer] I was told that I should request in a letter that the filing fee on the original application be transferred to the new application. I made that request in a letter to Fair Work on 16 August 2010.
I was contacted late in the day mid week and told that Fair Work had accidently refunded by cheque my original filing fee and that I would need to pay again. I contacted Fair Work the next day with credit card details and paid the fee again and was told that the application would be relodged.
I acted on the advice of Fair Work in regards to the timing of the application and as such am very distressed at the way my application has been handled so far and that I am now told I am out of time.”
[4] The Applicant attached a copy of a letter that was sent to her. The letter is unsigned.
The Respondent’s Contentions
[5] I wrote to Price Sierakowski Pty Ltd T/A Price Sierakowski Corporate (the Respondent) on 8 October 2010, requesting information and any response to the Applicant’s contentions. The Respondent gave the following written response:
“1. The applicant admits to being advised by Fair Work Australia of the correct "date range" in which to lodge her Application for Unfair Dismissal Remedy.
2. The applicant claims she prepared and lodged an Application for Unfair Dismissal Remedy on 11 August 2010 ("original application") and was subsequently notified by Fair Work Australia that this application had been lodged "too early". The applicant has not provided any evidence to support the claim that an original application was made on 11 August 2010.
3. It is perplexing as to why the applicant's signature at page 2 of her subsequent application is dated 16 August 2010. The respondent contends that it would have been sensible for the applicant to re-send a copy of her original application that she alleges was prepared on 11 August 2010, had such an application ever existed.
4. The applicant has not provided any evidence to prove the existence of:
a. the Notice of Discontinuance;
b. the letter requesting to transfer the filing fee from the original application; or,
c. the refund cheque for the filing fee.
5. In the subsequent application the "date dismissal took effect" reads: "4 August 2010 13 August 2010". The respondent does not believe that the applicant could make such a mistake if she was simply reproducing a document based on her original application.
6. Further:
a. the respondent does not believe that the applicant has given a satisfactory reason for her delay in lodging her application;
b. the applicant was given sufficient notice of the dismissal before it was to take effect, in fact bringing the dismissal date forward to 30 July 2010 was at the applicant's own request;
c. no action was taken by the applicant to dispute the dismissal until the Application for Unfair Dismissal was made on 16 August 2010;
d. the respondent will be significantly prejudiced should the Application for Unfair Dismissal be allowed to proceed;
e. the respondent does not believe that the application holds merit.”
Applicant’s Response to Respondent's Contentions
[6] The Applicant provided the following further material and explanations to me on 19 October 2010, in response to the Respondent’s contentions.
[7] The Applicant explained that:
“In relation to paragraph 2, I attach a copy of a facsimile transmission confirmation sheet of the original application sent on 11 August 2010 to Fairwork. Evidence of the original application can be obtained from Fairwork directly.
In relation to paragraph 3, I was advised by [name of FWA officer] to simply amend the date. This was done in blue pen changing the 11 to 16 August. A copy of the original application can be provided to Fairwork if they request it showing the change in a different colour pen.
In relation to paragraph 4:
a. I attach a copy of a letter from [name of FWA officer] requesting that I file a Notice of Discontinuance together with a copy of the Notice of Discontinuance. This Notice can also be obtained directly from Fairwork as they have the document on file.
b. I attach a copy of my letter requesting transfer of the fee of the original application to the new application. A copy of this letter is also on the files of Fairwork.
c. I do not have a copy of the refund cheque as it was returned to my credit card company and credited against my account. I can however obtain a copy from them if necessary, although I do not see how this is relevant as evidence of the refund cheque can easily be obtained from Fairwork.
In relation to paragraph 5, I was requested to change date so I simply crossed through and re-dated.”
[8] Whether the Applicant’s version of discussions held with officers of Fair Work Australia (FWA) is accurate or not is not something that I am in a position to make findings about. It might be that all of the circumstances were not explained regarding the lodging of the first application or this application.
[9] However, from the events that occurred and in particular the actions taken by the Applicant, together with the documentation lodged by her, it is safe to infer that her version of what has transpired is accurate.
Consideration
The reason for the delay
[10] The Applicant’s explanation for the delay is essentially that she lodged the earlier application on advice from FWA and received later contradictory advice from FWA that the earlier application was lodged prematurely. After receiving the later advice she lodged a Notice of Discontinuance. There appears to have been no communication with the Respondent regarding the earlier application.
[11] The Applicant did not expressly address when the termination occurred but it can be safely inferred that she agrees with the Respondent’s view that the termination occurred on 30 July. On that basis the earlier application was not premature at all, but rather, lodged within the appropriate timeframe.
Action taken by the Applicant to dispute the dismissal
[12] The important issue here is that the Applicant did lodge an application at an early date, thus clearly indicating that she contested the termination and she took action to pursue that objection. It was the advice and her following of that advice, by lodgement of a Notice of Discontinuance and lodging a fresh application that has caused this application to have been lodged outside the allowable time.
Prejudice to the Respondent
[13] I consider that the Respondent would be prejudiced if the application were allowed but not substantially so.
The merits of the application
[14] The Respondent’s grounds for the termination outlined in the Employers Response lodged appear to present a strongly arguable case. The Applicant’s case, on the other hand, does not appear to be strong. However, the Applicant has not at this juncture had an opportunity to respond to the contentions of the Respondent.
Fairness as between the Applicant and other persons in a similar position
[15] I consider it would not be unfair to other persons in a similar position if the application was allowed.
Conclusion and Determination
[16] It is clear here that there have been a range of difficulties encountered by the Applicant with most, if not all of them, appearing to arise from following the advice of FWA. The circumstances satisfy me that there are exceptional circumstances that exist that led to the filing of a Notice of Discontinuance of the earlier and lodging of a fresh application. I also consider it to be appropriate that a further period for the making of this application be allowed.
DEPUTY PRESIDENT
1 FWA records show that an application was lodged by the applicant on 11 August (U2010/11441)
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